Day on Torts
Where a plaintiff who fell in a grocery store presented no evidence in her premises liability case beyond the fact that there was a pallet in the aisle over which she tripped, the Court of Appeals affirmed summary judgment for defendant grocery store.
In Hunter v. Kroger Limited Partnership, No. W2017-01789-COA-R3-CV (Tenn. Ct. App. Nov. 5, 2018), plaintiff was shopping in defendant grocery store when she tripped on a pallet and fell. Plaintiff had been bent over in a freezer searching for an item. As she straightened up, she stepped backwards 3-4 steps to allow another customer to pass, and in doing so she “tripped on a wooden pallet that was left on the floor in the center of the aisle.” Evidence showed that the pallet was wooden and had been used for stocking the shelves, and that nothing was blocking plaintiff’s view of the pallet.
Plaintiff filed this premises liability action asserting that defendant “owed her an affirmative duty of care to protect her from the dangerous condition created by the pallet.” The trial court granted summary judgment for defendant, and the Court of Appeals affirmed.
In its memorandum supporting the motion for summary judgment, defendant argued that the pallet was not a dangerous condition and that plaintiff’s “allegation that this pallet was a dangerous condition is not based on anything other than the fact that she tripped.” Defendant filed a statement of undisputed facts, which included the facts that plaintiff was walking backwards and had taken around 4 steps before she hit the pallet and fell, and that there was nothing blocking the pallet from view. Plaintiff admitted all of these facts and “proffered no additional material facts, and submitted no additional evidence.” On appeal, this lack of evidence proved fatal to plaintiff’s case.
On appeal, plaintiff cited three other cases in which retail stores were held to be liable in similar scenarios—one where a plaintiff fell backwards after hitting her foot on the center-aisle display at a grocery (McDavid v. ALDI, No. 2:16-cv-02699-SHM-cgc (W.D. Tenn. 2017)); one where plaintiff tripped on a box sticking into the aisle while she was distracted by a hanging light display at Home Depot (Read. v. Home Depot USA, Inc., No. 01A01-9803-CV-00121 (Tenn. Ct. App. Oct. 15, 1998)); and one where a plaintiff tripped on an empty wooden display base at a grocery store and the court found that “a grocery store should reasonably expect customers to inspect and read items while they are shopping” (Fox v. Food Lion Store #539, No. E1911-00015-COA-R3-CV (Tenn. Ct. App. Sept. 21, 2000)). The Court, however, distinguished the present case from all three of these.
The Court noted that in at least two of these cases, “the premise of the holding…[was] that the defendant store intentionally created a merchandise display that was meant to attract the attention of customers.” (citing McDavid and Read). Moreover, the evidence presented by the plaintiffs in the cited cases differed drastically from plaintiff’s approach of presenting no evidence. The Court reasoned:
[T]he plaintiffs in those cases satisfied their burden in proffering sufficient evidence as to the defendant’s duty at the summary judgment stage. In Read, for example, there was evidence that the ‘cloud of light’ contained over two-hundred light fixtures meant to attract shoppers’ attention and that the carton over which the plaintiff tripped protruded several feet into the same aisle. Likewise, in McDavid, the plaintiff submitted evidence concerning the dimensions of the aisle compared to the display. Although [plaintiff] in this case had ample time to conduct discovery that would have perhaps produced similar evidence, [plaintiff] chose to submit no evidence at the summary judgment stage, nor did she seek additional time for discovery. …[T]he undisputed material facts reflect only that there was a pallet in the floor of the aisle and that [plaintiff] fell on it. It is well-settled in Tennessee that evidence of an injury, standing alone, does not constitute evidence of a dangerous condition.
(internal citations omitted). Summary judgment was thus affirmed.
The lesson here is simple—don’t try to fight a summary judgment motion empty handed. Plaintiffs must present more than just evidence of their injury in a premises liability case.