Warriner v. Wal-Mart Stores East, LP

832 F. Supp. 2d 78, 2011 WL 6181213, 2011 U.S. Dist. LEXIS 143074
CourtDistrict Court, D. Maine
DecidedDecember 13, 2011
DocketNo. 2:10-cv-00532-JAW
StatusPublished
Cited by1 cases

This text of 832 F. Supp. 2d 78 (Warriner v. Wal-Mart Stores East, LP) is published on Counsel Stack Legal Research, covering District Court, D. Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Warriner v. Wal-Mart Stores East, LP, 832 F. Supp. 2d 78, 2011 WL 6181213, 2011 U.S. Dist. LEXIS 143074 (D. Me. 2011).

Opinion

ORDER ON MOTION FOR SUMMARY JUDGMENT

JOHN A. WOODCOCK, JR., Chief Judge.

In this premises liability claim, the Court denies a retailer’s motion for summary judgment on the ground that reasonable inferences from a limited record create genuine issues of fact that preclude summary disposition.

I. STATEMENT OF FACTS

A. Procedural History

By Complaint dated October 26, 2010, Theresa Warriner filed a lawsuit in the Maine Superior Court against Wal-Mart Stores East, LP (Wal-Mart), alleging that on September 4, 2009, she sustained injuries when a glass bottle fell from a shelf and severely lacerated her leg. State Ct. Record, Attach. 1 Compl. (Docket # 3). On December 30, 2010, Wal-Mart removed the case to this Court. Notice of Removal (Docket #1). On June 27, 2011, WalMart filed a motion for summary judgment accompanied by a statement of material facts. Def. Wal-Mart Stores East, LP’s Mot. for Summ. J. (Docket #23) (Def.’s Mot.); Def. Wal-Mart Stores East, LP’s Statement of Material Facts in Support of Mot. for Summ. J. (Docket # 24) (DSMF). On July 15, 2011, Ms. Warriner responded, opposing the motion and filing a countervailing set of material facts. PI. ’s Mem. in Opp’n to Def.’s Mot. for Summ. J. (Docket #29) (Pi’s Opp’n); Pl.’s Reply in Opp’n [80]*80to Def.’s Statement of Material Facts and Pl.’s Statement of Additional Material Facts (Docket # 80) (PRDSMF; PSAMF). On July 29, 2011, Wal-Mart replied. Def. Wal-Mart Stores East, LP’s Reply to PL’s Opp’n to Def.’s Mot. for Summ. J. (Docket #32) (Def.’s Reply); Def. Wal-Mart Stores East, LP’s Reply Statement of Material Facts (Docket # 33) (DRPSAMF).

B. Facts1

1. Theresa Warriner and the Bottle of Perrier

On September 4, 2009, Theresa Warriner and her husband Russell Warriner visited a Wal-Mart store located at 1930 Main Street in Sanford, Maine with the intention of picking up a package of eight ounce plastic bottles of Poland Spring water and retrieving previously-left grocery items. DSMF ¶ 18; PRDSMF ¶ 18; PSAMF ¶ 1; DRPSAMF ¶ 1. Ms. Warriner was in the Sanford store for approximately ten minutes before she suffered an injury to her leg. PSAMF ¶ 2; DRPSAMF ¶ 2. Ms. Warriner contends that as she was walking toward Russell Warriner to put a package of bottled water in her cart, a glass bottle fell from the shelf behind her, lacerating the back of her leg. DSMF ¶ 2; PRDSMF ¶2. Ms. Warriner reached to the shelf and placed an eight-pack of water in her husband’s cart and turned around and grabbed a second eight-pack of water and placed it in the cart. DSMF ¶ 19; PRDSMF ¶ 19. After placing this second package in the cart, Ms. Warriner turned to speak with her husband and another man. DSMF ¶ 20; PRDSMF ¶ 20. Ms. Warriner did not at any time go anywhere near the bottles of Perrier and she did not knock the bottle off the shelf. PSAMF ¶ 18; DRPSAMF ¶18.2

Ms. Warriner then heard an explosion in the back of her. DSMF ¶20; PRDSMF ¶ 20. As many as five seconds elapsed between the time she turned and the moment the bottle exploded. DSMF ¶ 20; PRDSMF ¶20. After the bottle broke, Ms. Warriner heard a lady scream “she is cut” and she turned around and saw that her leg was bleeding. DRPSMF ¶ 5. The broken Perrier bottle had lacerated Ms. Warriner’s leg and the wound was bleeding very fast. DSMF ¶ 24; PRDSMF ¶ 24; PSAMF ¶5; DRPSAMF ¶5. Ms. [81]*81Warriner was taken by ambulance to the Goodall Hospital in Sanford. PSAMF ¶ 6; DRPSAMF ¶ 6.3 At the hospital, she received five staples in her leg. PSAMF ¶ 7; DRPSAMF ¶ 7.

2. Doreen Cardosi Zones the Aisles and Responds to the Scene

On September 4, 2009, Doreen Cardosi worked as the manager of the dry grocery department and front end registers at the Sanford Wal-Mart. DSMF ¶ 4; PRDSMF ¶ 4. Ms. Cardosi arrived at work at 7:00 a.m. on September 4, 2009. DSMF ¶ 5; PRDSMF ¶ 5. One of Ms. Cardosi’s first duties was to walk the aisles of the grocery department to “zone them,” checking to see that the products, including the water bottles, were shelved in a neat and orderly fashion. DSMF ¶ 6; PRDSMF ¶ 6. It typically takes Ms. Cardosi thirty minutes to one hour to walk through the grocery department. DSMF ¶7; PRDSMF ¶ 7.

After people gathered in the bottled water aisle, Ms. Cardosi responded to the scene. DSMF ¶ 36; PRDSMF ¶ 36. Ms. Cardosi observed the glass water bottles on the shelf and noted that they appeared to be shelved properly and neatly in rows. DSMF ¶ 37; PRDSMF ¶ 37. Ms. Cardosi observed that the front rows of the bottles were to the end of the shelf but were not overhanging the shelf. DSMF ¶ 38; PRDSMF ¶ 38.

3. Carlton Zielke Zones the Aisles, Responds to the Scene, and Comments About Shelving Practices

On September 4, 2009, Carlton Zielke worked as the department manager for candy and vendors at the Sanford WalMart. DSMF ¶ 8; PRDSMF ¶8. Mr. Zielke arrived at the store at approximately 7:00 a.m. DSMF ¶ 9; PRDSMF ¶ 9. As he typically did, Mr. Zielke began his day by walking the grocery aisles that are usually stocked by vendors and Wal-Mart associates. DSMF ¶ 10; PRDSMF ¶10. It typically takes Mr. Zielke thirty minutes to one hour to walk the aisles and “zone” the products stocked on the shelves. DSMF ¶ 11; PRDSMF ¶11. When he zones the shelves, Mr. Zielke sees that the products are lined up neatly on the shelves, that the products are not overhanging the shelves, and that the shelves are fully stocked for customers. DSMF ¶ 13; PRDSMF ¶ 13. As he “zoned” the bottled water aisle the morning of September 4, 2009, Mr. Zielke observed that the water products, including the glass bottles of Perrier water, appeared to be shelved properly. DSMF ¶ 14; PRDSMF ¶14. Mr. Zielke observed that the bottles of Perrier were lined up neatly in rows and the front row was brought to the edge of the shelves but the bottles were not overhanging the shelves. DSMF ¶ 15; PRDSMF ¶ 15. Viewed from the aisle, the Poland Spring water was shelved to the left of the Perrier water. DSMF ¶ 16; PRDSMF ¶ 16.4

[82]*82Mr. Zielke was working in the candy aisle when he heard a bottle fall to the floor and break. DSMF ¶ 21; PRDSMF ¶ 21. It took him only a few seconds to go from the candy aisle to the bottled water aisle. DSMF ¶ 22; PRDSMF 1122. When he arrived at the bottled water aisle, he saw a broken bottle on the floor that appeared to be a bottle of Perrier water. DSMF ¶ 23; PRDSMF ¶23. Following the incident, Mr. Zielke observed the shelves containing the Perrier water and noted that the rows of Perrier closest to the front of the shelf appeared to be neatly lined up and in order and were not overhanging the shelves. DSMF ¶ 30; PRDSMF ¶ 30.

In his current job for National Distributors, Mr. Zielke stocks individual bottles of non-alcoholic drinks at several Shaw’s and Hannaford grocery stores in southern Maine and these products, some of which come in glass bottles, are stocked on flat shelves, are lined up in neat rows, and are brought to the edge of the shelves, as was the manner used for shelving the Perrier water in this case. DSMF ¶ 35; PRDSMF ¶ 35. When employed at the Sanford Wal-Mart, Mr.

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Bluebook (online)
832 F. Supp. 2d 78, 2011 WL 6181213, 2011 U.S. Dist. LEXIS 143074, Counsel Stack Legal Research, https://law.counselstack.com/opinion/warriner-v-wal-mart-stores-east-lp-med-2011.