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Wheeler v. Wal-Mart Louisiana, LLC

United States District Court, E.D. Louisiana

November 28, 2018

CECIL JEAN WHEELER, ET AL.
v.
WAL-MART LOUISIANA, LLC

         SECTION: “J” (2)

          ORDER AND REASONS

          CARL J. BARBIER UNITED STATES DISTRICT JUDGE

         Before the Court is a Motion for Summary Judgment (Rec. Doc. 38) filed by Defendant WAL-MART STORES, INC. (“Wal-Mart”). Plaintiffs, the surviving spouse and children individually and on behalf of Sandy Wheeler (“Plaintiffs”), oppose the motion (Rec. Doc. 39). Wal-Mart filed a reply (Rec. Doc. 42). Having considered the motion and legal memoranda, the record, and the applicable law, the Court finds that the Motion for Summary Judgment should be GRANTED.

         FACTS AND PROCEDURAL HISTORY

         This litigation derives from an alleged slip and fall incident that occurred at the New Orleans Wal-Mart Supercenter Store #912 located at Bullard Avenue in Orleans Parish. The parties allege that the decedent, Sandy Wheeler (“Mr. Wheeler”), was a patron at the store on May 5, 2016. While he was standing near the deli section, Plaintiffs allege that Mr. Wheeler “fell backwards due to an unknown hazard on the premises, hitting his head.” (Rec. Doc. 9-1, at 2). Mr. Wheeler was transported by ambulance to New Orleans East Hospital, where he was treated and diagnosed with a subdural hemorrhage. That same day, he was transferred to West Jefferson Medical Center for treatment by neurological specialists. Mr. Wheeler's condition deteriorated, and he died on May 9, 2016.

         On January 6, 2017, Plaintiffs filed this lawsuit against Wal-Mart in the Civil District Court for the Parish of Orleans. Wal-Mart timely removed the case to federal court on the basis of diversity jurisdiction. Plaintiffs seek wrongful death and survival action damages allegedly sustained as a result of the incident that occurred at Wal-Mart on May 5, 2016.

         PARTIES' ARGUMENTS

         The movant argues that it is entitled to judgment as a matter of law for two reasons. (Rec. Doc. 38, at 1). First, Wal-Mart argues that Plaintiffs cannot satisfy their burden at trial of proving that Wal-Mart's conduct was the cause in fact of Mr. Wheeler's injury because he simply fainted and fell to the floor. (Rec. Doc. 38-1, at 4). Wal-Mart alleges that no reasonable jury could find that Wal-Mart caused Mr. Wheeler's accident given Plaintiffs' failure to produce any evidence to suggest the cause of Mr. Wheeler's fall. (Rec. Doc. 38-1, at 5). On the contrary, Wal-Mart asserts that the evidence overwhelmingly supports the conclusion that Mr. Wheeler injured himself because he passed out and not because of any fault on the part of Wal-Mart. (Rec. Doc. 38-1, at 6). Wal-Mart emphasizes that Malik Gillam, a former Wal-Mart employee and the sole eyewitness to the accident, testified in his deposition that Mr. Wheeler was standing still and appeared to simply pass out. (Rec. Doc. 38-1, at 5). Wal-Mart also points to the deposition testimony of Tyler Gros, the EMS-Paramedic who arrived on the scene after Mr. Wheeler's injury and filled out the EMS record indicating that Mr. Wheeler-who Tyler Gros described as clearheaded and lucid at the time of the interview-must have informed the paramedics that he had fainted based on the terminology included in the report. (Rec. Doc. 38-1, at 5).

         Second, Wal-Mart argues that Plaintiffs cannot satisfy their burden at trial of proving either the existence of a condition that presented an unreasonable risk of harm or that Wal-Mart created or had notice of such a condition because Plaintiffs have produced no evidence to suggest that an unreasonably dangerous condition existed on the floor where Mr. Wheeler fell. (Rec. Doc. 38-1, at 6). In support of its argument, Wal-Mart points to eyewitness Malik Gillam's deposition testimony that he did not see anything on the floor in the area where Mr. Wheeler fell. (Rec. Doc. 38-1, at 6). Wal-Mart also notes that Quiana Taylor, the Wal-Mart manager who investigated Mr. Wheeler's incident, testified that there was no liquid or any other type of substance on the floor in the area where Mr. Wheeler fell.[1] (Rec. Doc. 38-1, at 7).

         In opposition, Plaintiffs argue that summary judgment should not be granted in Wal-Mart's favor because the cause of Mr. Wheeler's fall is disputed. (Rec. Doc. 39, at 3). First, Plaintiffs allege that reasonable doubt exists as to the cause of Mr. Wheeler's fall because eyewitness Mark Gillam lacks credibility. (Rec. Doc. 39, at 3). Specifically, Plaintiffs note that on the day of the incident, Mr. Gillam reported that “[w]hile serving on the ‘hot side' of the Deli, [he] observed a man suddenly hit the floor.” (Rec. Doc. 39, at 3). Plaintiffs assert that it was not until Mr. Gillam's deposition eighteen months after the incident that he stated he “observed Mr. Wheeler suddenly-he was standing there and suddenly he fell to the ground in a pass-out fashion.” (Rec. Doc. 39, at 4). Plaintiffs also challenge Mr. Gillam's credibility on the ground that he testified in his deposition that he voluntarily left his position at Wal-Mart, but Quiana Taylor testified that Mr. Gillam was terminated because he invited another ex-associate to tamper with pizza. (Rec. Doc. 39, at 4).

         Next, Plaintiffs argue that EMT Tyler Gros' testimony creates a genuine issue of material fact because he had no memory of the incident at the time of his deposition and relied solely on the paperwork from the date of the incident to conclude that Mr. Wheeler must have informed Mr. Gros that he had fainted. (Rec. Doc. 39, at 4). Plaintiffs assert that Mr. Gros' lack of memory regarding the incident that occurred eighteen months prior to his deposition requires the court to make a credibility determination.

         Third, Plaintiffs aver that discrepancies in the testimony of Quiana Taylor, Tiphanie Williams, and Quintana Canselo create genuine issues of material fact. (Rec. Doc. 39, at 5). Specifically, Plaintiffs argue that Ms. Williams' deposition testimony contradicts that of Ms. Taylor in that Ms. Taylor testified that Ms. Williams took photos of the accident scene, but Ms. Williams testified that Wal-Mart employee, Jerome George, was responsible for taking the photos. (Rec. Doc. 39, at 5). Additionally, Plaintiffs note that Mrs. Canselo's testimony contradicts that of Ms. Williams because Mrs. Canselo testified that Ms. Williams retrieved the camera from the asset protection office and Mr. George took the photos. (Rec. Doc. 39, at 5-6). Plaintiffs conclude that these alleged discrepancies result in reasonable doubt that creates a genuine issue of material fact precluding summary judgment. (Rec. Doc. 39, at 6).

         Finally, Plaintiffs argue that summary judgment in Wal-Mart's favor is improper because there is evidence that tends to show that Mr. Wheeler's accident was caused by an unreasonably dangerous condition on Wal-Mart's floor. (Rec. Doc. 39, at 6). To support this contention, Plaintiffs point to Quiana Taylor's deposition testimony “that there was a little dent in the floor where the incident occurred, and that the [sic] she and the other managers decided to take photos of that divot to include in the incident report.” (Rec. Doc. 39, at 6). Plaintiffs also note that Jerome George testified that Quiana Taylor instructed him to bring a ruler and take a picture of the area where the dent is located days after the incident occurred. (Rec. Doc. 39, at 6). Plaintiffs argue that despite Wal-Mart's assertion that the dent is less than one-sixteenth of an inch deep, “[a]s of yet, there has been no precise measurement of the dent nor any expert testimony to state that a deformity such as the one shown in the picture could not have caused Mr. Wheeler's fall.” (Rec. Doc. 39, at 6-7). Based on the foregoing, Plaintiffs conclude that summary judgment should not be granted. (Rec. Doc. 39, at 7).

         Wal-Mart raises five arguments in its reply. (Rec. Doc. 42). First, Wal-Mart asserts that Malik Gillam's testimony raises no credibility issues. (Rec. Doc. 42, at 1). Wal-Mart emphasizes that Mr. Gillam's deposition testimony regarding his recollection of the incident does not contradict his witness statement simply because his witness statement taken on the day of the incident does not explicitly reference Mr. Wheeler passing out. (Rec. Doc. 42, at 2). Wal-Mart notes that Mr. Gillam's deposition testimony is corroborated by the EMS medical records from the day of the incident describing Mr. Wheeler's chief complaint as “syncope with fall, ” i.e., “a fainting episode or near-fainting episode.” (Rec. Doc. 42, at 2). Finally, Wal-Mart asserts that whether Mr. Gillam left his job at Wal-Mart ...


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