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Hower v. Wal-Mart Stores

June 16, 2009

CATHERINE HOWER AND GRANT HOWER
v.
WAL-MART STORES, INC.



The opinion of the court was delivered by: Surrick, J.

MEMORANDUM

Catherine Hower ("Plaintiff") filed this negligence action after she sustained injuries in a slip-and-fall at a store operated by Wal-Mart Stores, Inc. ("Defendant"). Presently before the Court is Defendant's Motion for Summary Judgment. (Doc. No. 11.) For the following reasons, the Motion will be granted.

I. BACKGROUND

On August 4, 2006, at 11:00 a.m., Plaintiff and her husband stopped at the Wal-Mart store in Horsham, Pennsylvania, to purchase snacks and other items en route to an appointment. (Doc. No. 11 ¶¶ 1, 3; Doc. No. 12 ¶¶ 1, 3; C. Hower Dep. 14-17.) It was a "normal busy day" at the store and "there was [a] good volume" of customers inside. (G. Hower Dep. 14-15.) Plaintiff frequented this particular Wal-Mart at least three or four times per month, and she had been there a week earlier. (C. Hower Dep. 16, 31.) On this occasion, Plaintiff and her husband separated to make their respective purchases and then reunited in the cosmetics department. (C. Hower Dep. 17; Leister Dep. 18.) Plaintiff began walking down an aisle as her husband followed behind her. (C. Hower Dep. 17; G. Hower Dep. 18.) Plaintiff reached the end of the aisle and turned the corner to walk down the next aisle. (C. Hower Dep. 22-23.) About five seconds after Plaintiff turned the corner and walked into the next aisle, she slipped on a liquid substance and fell on the floor. (C. Hower Dep. 17, 19-20, 23; G. Hower Dep. 21, 24.) Plaintiff did not see the liquid until after she fell and was sitting in it. (C. Hower Dep. 20.) Plaintiff injured her knee and back in the fall. (Id. at 29.)

The liquid substance was bubble bath that consisted of several "blotches" spread over two or three feet on the floor. (C. Hower Dep. 19-21; Byrd Dep. 84; Moore Dep. 57-58.) Plaintiff noticed an empty bottle of the bubble bath beside the spill. (C. Hower Dep. 19-21.) No footprints, shopping cart marks, tracks, or slip marks were visible in the spill. (C. Hower Dep. 21, 23; see also Moore Dep. 58 ("I saw no disturbance of the blotches of material on the floor").) Plaintiff also does not remember seeing any dust in the spill. (C. Hower Dep. 26.) Plaintiff did not see any other spills, liquids on the floor, or other hazardous conditions in the store before she fell. (Doc. No. 11 ¶ 17; Doc. No. 12 ¶ 17.) The floors were otherwise clean. (C. Hower Dep. 19.)

Gloria Leister ("Leister") was the manager of the cosmetics department where Plaintiff fell. (Leister Dep. 18.) On the day of Plaintiff's accident, Leister started working at 7:00 a.m. and inspected the aisles sometime that morning:

Q: Do you know when the last time you were in the aisle where this fall occurred had been that day?

A: Earlier that morning when I came in I, you know, checked the aisles for any merchandise on the floor, whether it was, you know, liquid or cosmetic wise.

(Id. at 19.) In addition to her initial inspection, Leister was supposed to make periodic safety sweeps throughout the day. (Id. at 19-20, 28.) A safety sweep is when all Wal-Mart associates stop what they are doing and inspect the aisles to "look for things people might slip on or trip over such as merchandise, debris, or liquid on the floor." (Doc. No. 11-7.) Under store policy, associates immediately clean up any spills that are identified during a safety sweep in order to reduce the incidence of slips, trips, and falls. (Id.; see also Doc. No. 11 ¶ 24; Doc. No. 12 ¶ 24.) Safety sweeps are announced using the store's intercom system at the bottom of every hour. (Leister Dep. 20; see also Suchy Dep. 65-66 (noting that safety sweeps are "generally announced over the intercom system, and they're approximately every hour, hour to 90 minutes").) However, at the time of Plaintiff's fall, Leister was in the back of the store at the receiving area and could not hear the intercom. (Leister Dep. 19, 29.) Leister does not remember how long she was in the receiving area before Plaintiff's fall. (Id. at 19.)

Leister testified at her deposition that when a Wal-Mart associate is absent from his or her department when a safety sweep is announced, another associate checks the absent associate's area. (Id. at 20 ("If we weren't in your [sic] area and [a safety sweep was] called you had area people that would check your area. We all worked as a team and helped each other.").) Leister initially testified that she told other associates that she would be working in the back:

Q: Are you supposed to tell somebody that you're going to be in the back and not --

A: Oh yeah. I let people know that I was going to be off the floor. (Id. at 27.) However, Leister later acknowledged the possibility that she did not tell anyone that she would be working in the back:

Q: Did you tell anyone that day that you were in the back working during that morning?

MS. TILSON: Asked and answered.

A: See, I'm not sure how I answered it. I possibly could have and I don't recall, we're going back two-and-a-half years ago.

Q: Okay. So you possibly might not have?

A: It's possible.

(Id. at ...


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