Gainer v. Wal-Mart Stores East, L.P.

933 F. Supp. 2d 920, 90 Fed. R. Serv. 1354, 2013 WL 1248627, 2013 U.S. Dist. LEXIS 44705
CourtDistrict Court, E.D. Michigan
DecidedMarch 28, 2013
DocketCase No. 2:11-cv-14331
StatusPublished
Cited by9 cases

This text of 933 F. Supp. 2d 920 (Gainer v. Wal-Mart Stores East, L.P.) is published on Counsel Stack Legal Research, covering District Court, E.D. Michigan primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gainer v. Wal-Mart Stores East, L.P., 933 F. Supp. 2d 920, 90 Fed. R. Serv. 1354, 2013 WL 1248627, 2013 U.S. Dist. LEXIS 44705 (E.D. Mich. 2013).

Opinion

OPINION AND ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

GERALD E. ROSEN, Chief Judge.

I. INTRODUCTION

This relatively simple slip-and-fall case presents a law school examination-type question which tests the boundaries of the present sense impression and excited utterance exceptions to the general prohibition against hearsay testimony. Specifically, it examines the extent to which hearsay statements themselves can be used to prove the actions and circumstances surrounding the event which actually prompted their utterance. -

On August 30, 2011, Plaintiff Diane Gainer filed this action in Wayne'County Circuit Court, alleging that Defendant Wal-Mart Stores East, L.P., is liable for injuries sustained as a result of her slip- and-fall in Defendant’s store on September 13, 2008. Defendant removed the action to this Court on September 30, 2011, pursuant to 28 U.S.C. §§ 1441(a) and 1445(a). Following discovery, Defendant filed the [923]*923present motion for summary judgment on June 29, 2012.

II. FACTUAL BACKGROUND

This case began in the mid-morning of September 13, 2008, when Plaintiff Diane Gainer and her daughter, Angela Bell, drove to Defendant’s Livonia, MI location. Ms. Bell and Plaintiff parked towards the back of the lot, which was wet and covered with puddles from that morning’s rainstorm. It does not appear that it was raining when Plaintiff and her daughter arrived at the store.

Plaintiff and her daughter walked across the parking lot, approached the store’s entrance, and passed through the first of two sets of automatic sliding doors into a vestibule. The vestibule — comprising of the area between the two sets of automatic doors — was about 10 feet in length and contained a shiny, glassy-looking, dark-colored floor. The second set of doors leads from the vestibule into the store itself. The parties dispute whether or not the floor was covered with mats, but it is undisputed that no warning signs or cones were posted to alert invitees of any danger.

Plaintiffs daughter passed through the doors first and was about four feet ahead of Plaintiff when she stopped to let her mother catch up. Plaintiff walked “very carefully” over the same ground just traversed by her daughter, and was “looking down” at the ground as she walked. Neither Plaintiff nor her daughter saw anything on the ground, and her daughter did not warn her to be careful.

Plaintiff suddenly began to fall. She reached out to hold on to her daughter, but could not reach, and eventually lost her footing and fell on her bottom, breaking her wrist and allegedly incurring a number of other injuries.

Several customers came to help Plaintiff to her feet, allegedly stating that “[other] people had came in and almost went down because they didn’t have mats or cones out there.” PI. Dep. 46-47. According to Ms. Bell, the unidentified customers were “very upset,” stating “they [Defendant] were just mopping'the [mother f~king] floor. Why didn’t they put mats out or signs out?” Bell Dep. 39-40. The customers helped Plaintiff off the floor and seated her on a bench, where she met with a WalMart employee about her fall and had her daughter fill out an Incident Report on her behalf. A security guard was positioned beyond the second set of doors throughout the incident, but there is no evidence regarding the guard’s identity or what he saw before, during, or after Plaintiffs fall.

In her deposition, Plaintiff was asked about the cause of her fall. The transcript reads as follows:

(By counsel)
Q: What do you believe caused you to slip and fall in the vestibule?
A: Water on the floor.
Q: Do you think anything else caused you to fall?
A: No.
Q: Was there anything in the area that blocked your view of the floor?
A: It was nothing on the floor, it’s just a wide open space that you just walk through.
Q: Do you recall how much water was on the floor that you believe caused you to fall—
A: I couldn’t—
Q: Diane, you’ve got to wait. Do you believe, do you know how much water was on the floor that you believe you slipped in?
A: No.
Q: Do you know how that water got on the floor that caused you to fall?
A: I guess someone had mopped out there I guess.
[924]*924Q: You think someone mopped?
A: Yes, they told me someone had been out there mopping.
Q: Who told you that?
A: One of the customers.
Q: Another customer told you that Wal-Mart had been mopping the vestibule?
A: Uh-huh.
Q: Is that a yes?
A: Yes.
Q: Who’s this customer?
A: I don’t know their name. You know what, I didn’t talk [sic] nobody’s name because I didn’t realize that I had really hurt myself.
Q: When did this customer tell you that they saw someone mopping the floor?
A: Before I came in I believe.
Q: Before you came into the vestibule?
A: Before, I guess before, yes.
* * * *
Q: You were out of the parking lot when someone told you this?
A: No, no, I was inside when they told me after I fell.
Q: After you fell?
A: Yes, ma’am.
Q: And you were sitting on the bench?
A: Before I could, when they was getting me up off of the floor, I could hear the customers, I could.

PI. Dep. 55-57.

Later in her deposition, Plaintiff admitted that she does not know how the water got on the floor. PI. Dep. 61 (“Q: And you don’t know how the water got on the floor? A: No, I don’t.”). Further, Plaintiff claimed to possess no personal knowledge of: (i) when Wal-Mart last mopped the area; (ii) whether the area was wet mopped or dry mopped; (iii) whether a customer had recently spilled water or some other liquid in the vestibule; (iv) whether a customer had recently tracked-in rain water from the wet parking lot; (v) when-the vestibule was last inspected by Wal-Mart; (vi) if any other customers fell or complained to Wal-Mart management about water in the vestibule; or (vii) how long the alleged water had been sitting in the vestibule prior to Plaintiffs fall. Plaintiffs daughter likewise was unable to assert personal knowledge of any of these facts.

Neither Plaintiff nor her daughter reported seeing water on the ground either before or after Plaintiffs fall.

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Bluebook (online)
933 F. Supp. 2d 920, 90 Fed. R. Serv. 1354, 2013 WL 1248627, 2013 U.S. Dist. LEXIS 44705, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gainer-v-wal-mart-stores-east-lp-mied-2013.