Jason Boleman//October 18, 2021
Jason Boleman//October 18, 2021//
A premises liability case resulting from a slip-and-fall incident will go to trial after a federal judge denied a motion for summary judgment by the defendant.
The ruling by U.S. District Court for the Western District of Virginia Judge Norman K. Moon means the case will be tried next year. Moon made the decision after concluding “that Plaintiff has raised genuine issues of material fact that must be resolved by a jury at trial.”
The Sept. 30 memorandum opinion and order is Green-Geter v. Walmart Stores East L.P. (VLW 021-3-469).
According to court documents, the incident happened Nov. 14, 2017, when Cynthia Green-Geter was shopping at a Walmart in Louisa County with her daughter and grandson.
Green-Geter testified that she bent down to pick up paper towels. As she did so, she slipped and fell on “a piece of clear plastic that was on the floor.” Her grandson testified that the clear plastic Green-Geter slipped on appeared to be “Saran wrap” or “shrink wrap.” He also testified from his experience working at a different Walmart store that plastic would have been used to “wrap the pallets in.”
Security camera footage did not capture the “precise spot on the ground” where Green-Geter slipped, but a review of the footage before the incident revealed “one or more” store employees working in the area where the plaintiff fell in the preceding 40 minutes.
Per court documents, the footage shows employees restocking the shelves with paper towels “for a substantial portion of that period of time before Plaintiff walked down the aisle of paper towels.” The video also captures an employee bringing a pallet over to the approximate location roughly 50 minutes before Green-Geter fell.
The pallet was ultimately moved about 15 minutes before the plaintiff’s fall. Security camera footage shows the fall, described as a “fall into shelves of paper towels.” Green-Geter was helped up, and she and her family filled out a customer incident report after the incident. While Green-Geter testified to suffering injuries from the fall, the Sept. 30 opinion does not go into detail on the extent of her injuries.
On Feb. 12, Walmart filed a motion for summary judgment and asked the court to dismiss Green-Geter’s case with prejudice.
“Based on plaintiff’s version of the accident, she cannot establish that Walmart either knew or should have known of an unsafe condition, and as such, cannot make a prima facie case of negligence against Walmart,” the motion states.
The motion also said Green-Geter must establish that Walmart should have been aware of “the substance on the floor” prior to the accident to establish constructive notice, and that she must show the hazard was both noticeable and in place for a sufficient length of time to require Walmart be aware of its existence.
The motion further said that no one from Walmart saw the incident and that few people were in the aisle when Green-Geter slipped.
Additionally, Green-Geter and her family testified they did not know how the hazard ended up on the floor.
“Plaintiff presented no testimony or other evidence regarding what she believes Walmart did wrong, if anything,” the motion states. It also claims that Green-Geter “was not paying attention to her environment or where she was walking” and that her “failure to see the plastic on the floor that both her daughter and her grandson saw was negligence.”
In ruling on the motion, Moon wrote that “the Court concludes that Plaintiff has produced sufficient evidence to give rise to genuine issues of material fact to be decided by a jury.” The judge added that there was evidence the plastic Green-Geter slipped on was used for wrapping pallets at Walmart and that Walmart employees were restocking shelves in the vicinity prior to Green-Geter’s fall.
“Reasonable jurors could conclude that, in the course of re-stocking, a Wal-Mart employee placed or threw items from packaging, including clear plastic, on the floor,” Moon wrote.
He continued, “It would further be reasonable for a jury to find that Wal-Mart, having actual notice of the hazard, failed to either timely remove the dangerous condition or hazard or warn Plaintiff in a timely manner so that she could avoid it.”
Moon said the resolution of Walmart’s contributory negligence defense is a matter to be resolved by a jury, adding that the 1983 case of Va. Elec. & Power Co. v. Winesett established contributory negligence as a jury issue.
The judge also questioned Walmart’s assertion that the plastic was an “open an obvious hazard,” noting that the plastic was transparent on a gray floor.
“Whether the clear plastic posed an open and obvious hazard is not susceptible to resolution on summary judgment, and it and Wal-Mart’s contributory negligence defense are issues for the trier of fact,” Moon wrote.
The case has been scheduled for a jury trial next May in Charlottesville.
Palmyra attorney Terry T. Hughes represented Green-Geter, while Richmond attorney D. Cameron Beck Jr. of McCandlish Holton represented the defendants. Neither attorney provided comment for this story.