Babalola vs. Wal-Mart Stores East, LP d/b/a Wal-Mart Supercenter Store #1390, Dist. Court, MD Florida 2015 is an appeal of a lawsuit where a customer sued Walmart for causing his trip and fall on plastic.
The United States District Court, M.D. Florida, Tampa Division issued an order on January 15, 2015. That is federal court.
It is very likely that the customer’s lawyer sued Walmart in state court in Pinellas County, Florida. It is also likely that Walmart’s attorney then removed this case to federal court. In Florida, Walmart does this quite often.
I have handled many Florida store trip and fall injury claims. However, this is not my case.
Walmart moved for summary judgment two times. This means that its lawyer asked that the court permanently dismiss the customer’s case on two separate occasions. The court refused to dismiss the case.
Both Babalola and Walmart agree that on July 12, 2012, he was a business invitee at the Wal-Mart Supercenter on US Highway 19 North in Pinellas County, Florida (Wal-Mart).
The only other undisputed facts are that he walked at 2:00 a.m. to the north end of the store to retrieve ground chuck from a refrigerated meat section located on a wall of the store. He testified at deposition that he had frequented the store five or six times before the day of the incident.
He has also returned to store three or four times since the incident.
According to Babalola, he tripped when his foot caught on plastic that had been removed by employees from a pallet full of stock, which had been left in a space between the pallet and a freezer, or bunker, that sits out on the floor of the store away from the wall.
The assistant manager refers to the plastic as “shrink-wrap”. The customer said that he thought it was safe to step on the pallet, and that he did not see anything that would cause him to fall.
According to Wal-Mart, it owed no duty to warn him of the open and obvious condition that caused him to trip.
Wal-Mart argues there was an alternative route to the refrigerated meat section, which he could have taken. Babalola said that he used the only way possible to reach the meat because the aisles were roped off.
He said, “Rather than taking a chance going the other way, you know — like I said, it was netted off — I would have had to go about two aisles down further to come back up, but I had to go two aisles that way and come back down.”
He said that the meat aisle was blocked off from both directions. He then admitted that “[o]n the left, I could have gone down two aisles … take a right, and I could come back down to the chuck.”
Later, he again testified, “[I]t wasn’t an opening anywhere else, because those were netted off between the meats until — and that was the only spot that was open for you to go through, unless you go down to where, I think, the paper towel, toilet paper or something, and then you come back up from there.”
He argues that Wal-Mart, under the circumstances of this case, failed to fulfill its duty of ordinary care in maintaining its premises in a reasonably safe manner, as well as its duty to warn of or disclose the dangerous condition.
Both the customer and Walmart rely on the video. While the video captures the accident, the vantage point of the camera is such that the exact nearness of the plastic, the pallet, and the freezer on the floor is not easy to tell.
It is apparent that he took the shortest path to the refrigerated case against the wall. It is unclear whether there was another unobstructed path to the wall.
The video shows people, presumably Wal-Mart employees, walking freely in front of the refrigerated wall and entering from other directions than the path chosen by the shopper. Almost immediately after the incident, two employees begin talking with him, and he walks off with them.
Fewer than five minutes after the incident, the assistant manager walks to the place where the incident occurred, and the assistant store manager picks up the shrink-wrap from the floor. Babalola returns to the scene of the incident with an employee, and then follows the assistant store manager away from the area and outside the view of the camera.
In order for Walmart to have this case dismissed before trial, it needs to show that there is no genuine dispute regarding a material fact.
If Walmart cannot show this, then the shopper gets to bring his case before a jury. The customer wants a jury trial.
In Florida, negligence must be established by a preponderance of evidence that:
(1) the defendant had a duty to protect the invitee,
(2) the defendant breached that duty, and
(3) the defendant’s breach was the proximate cause of the invitee’s injuries and resulting damages. See Cooper Hotel Serv., Inc. v. MacFarland, 662 So.2d 710, 712 (Fla. 2d DCA 1995).
Tip: The preponderance of the evidence standard (used in a trip and fall case) is a much easier standard to meet than the “beyond a reasonable doubt” standard in criminal cases.
Wal-Mart argues that the only dispute arises under the second part of the proof-whether Wal-Mart breached its duty to Babalola.
The duties owed by a landowner to a business invitee include:
(2) giving the invitee warning of concealed perils that are or should be known to the landowner and that are unknown to the invitee and cannot be discovered through the exercise of due care. See Knight v. Waltman, 774 So.2d 731, 733 (Fla.Dist.Ct.App. 2000).
The duty to warn does not arise unless the landowner’s knowledge of the danger is superior to the business invitee’s. An open and obvious danger is one that can be discovered by the customer through the exercise of ordinary care.
For example, in Taylor v. Universal City Prop. Mgm’t, 779 So.2d 621, 622 (Fla.Dist.Ct.App. 2001), a court dismissed a guest’s personal injury case against the theme park owner (Universal Studios) where the guest stepped on edge of row of tree planters which were open and obvious hazard as matter of law.
In Crawford v. Miller, 542 So.2d 1050, 1051 (Fla.Dist.Ct.App. 1989), the court dismissed a case where a person had actual knowledge of “Malibu” lights along a landowner’s sidewalk.
The person did not have to walk over them on the path to the house. He was injured while doing so. There was no claim of negligent maintenance.
In Potash v. Orange Cty. Lake Country Club, Inc., 2005 WL 1073926 (M.D. Fla. 2005), the court dismissed a case for a landowner where the claimant, who did not see tree stump in dried water hazard area while golfing, admitted that tree stump was sticking out of the grass.
Learn more about personal injury claims against a Florida golf course/club.
Walmart argues that the plastic next to and on the pallet was an open and obvious condition of which the shopper was fully aware. Babalola said that, before the fall, he saw the plastic in the path he took to retrieve the refrigerated ground chuck.
His awareness of the danger, however, may still make a defendant potentially liable negligently permitting the dangerous condition to exist.” Miller v. Slabaugh, 909 So.2d 588, 589 (Fla.Dist.Ct.App. 2005). It simply raises the issue of comparative negligence and prevents summary judgment (dismissal).
Back to the Walmart case…
While the pathway covered by plastic appears to be an open and obvious danger of which the customer was aware, the evidence is not so clear as to whether there was an alternative route the customer could have taken to avoid the danger.
Tip: A slip and fall case is generally better if the customer did not have an alternative route that he or she could have taken to avoid a hazard.
The evidence is also not so clear as to whether reasonable care was exercised in the condition of the area in question while stocking.
As support for Babalola’s argument, his lawyer cited cases note the effect of the comparative negligence doctrine on the “patent danger” defense:
In Tallent v. Pilot Travel Ctrs., LLC, 137 So.3d 616 (Fla.Dist.Ct.App. 2014), the court reversed dismissal in favor of service station owner on factual issue of whether premises was maintained in reasonably safe condition by following clean up procedures with respect to obvious gasoline spill).
In Miller, the appeals court reversed a dismissal in favor of landowner on factual issue of whether landowner should have anticipated potential harm, notwithstanding customer’s knowledge of the danger.
In Fenster v. Publix Supermarkets, Inc., 785 So.2d 737 (Fla.Dist.Ct.App. 2001), the court reversed dismissal for Publix supermarket on factual issue of whether store maintained premises in reasonably safe condition in placement of stock cart and whether patron was comparatively negligent.
Learn more about Fenster, where a Florida Publix shopper’s case was allowed to go to trial where she tripped over a stock cart and fell. She assumed they would move it.
In this Walmart case, the court determined that genuine issues of material fact exist regarding maintaining the premises in a reasonably safe condition and whether Babalola was comparatively negligent, the Court denied summary judgment.
This means that the court refused to dismiss the case. This is great for the injured man.
He still has a tough case, as trip and fall cases are difficult.
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