United States District Court, E.D. Louisiana
CECIL JEAN WHEELER, ET AL.
WAL-MART LOUISIANA, LLC
ORDER AND REASONS
J. BARBIER UNITED STATES DISTRICT JUDGE
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.
AND PROCEDURAL HISTORY
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.
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,
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).
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. (Rec. Doc. 38-1, at 7).
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
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.
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).
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).
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