United States District Court, S.D. Ohio, Western Division, Dayton
CLAUDIA W. BITTNER, et al., Plaintiffs,
WALMART STORES EAC, INC., aka Wal-Mart Stores East, LP,, Defendants.
DECISION AND ENTRY
L. Ovington United States Magistrate Judge
Claudia W. Bittner fell and fractured her right wrist while
walking into a Sam's Club store in Washington Township,
Ohio. She and her husband seek to recover damages from
Defendants Sam's Club and its owner, Walmart Stores East,
Inc., under theories of negligence, failure to supervise, and
loss of consortium. The case is presently before the Court
upon Defendants' Motion for Summary Judgment (Doc. #18),
Plaintiffs' Memorandum in Opposition (Doc. #21),
Defendants' Reply (Doc. #22), and the record as a whole,
including (in part) a video of the incident in question and
photographs of the scene.
clear, dry spring morning, Plaintiff Claudia Bittner
(Plaintiff) and her grandson stopped at a Sam's Club to
get gas for her car. When she attempted to use her Sam's
Club membership card, she discovered it had expired. To renew
her membership, she needed to enter the Sam's Club store.
to Plaintiff or her grandson before they began walking
towards the Sam's Club, a crack existed in the surface of
the crosswalk in front of the store. Plaintiff testified
during her deposition, “there was a crack in the
asphalt, a pretty big crack, and my heel caught in that crack
and I went down on my right wrist and completely broke my
wrist.” (Doc. #17, PageID #104, deposition p.
22). She described the crack as “[a]t least one inch
wide and one inch deep” but did not know if it was
greater than one inch deep. Id. at depos. pp. 23-24.
She did not see the crack until after she fell. Id.
at depos. p. 23. Rather than looking down as she walked, she
was looking at the store. Id. at depos. p. 41.
grandson states in his sworn declaration, “As I
traversed the parking lot with Plaintiff Claudia Bittner, my
attention was directed to the store and I was checking for
vehicular and pedestrian traffic…. After Plaintiff
… fell, I could immediately see that the asphalt in
that area of her fall had a long, large crack in it.”
(Doc. #21, PageID #159-60).
broken wrist caused her “horrible” pain.
Id. at depos. p. 26. An emergency squad took her to
a nearby hospital where her wrist was temporarily set. It
appears that she was not hospitalized overnight. See
id. at 29-30. The next morning she saw Dr. Alzsmkary, an
orthopedic surgeon. He examined her swollen wrist and placed
it in another temporary cast. Five days after Plaintiff fell,
Dr. Alzsmkary performed surgery on her right wrist and
“put a plate in ….” Id. at depos.
p. 30. Her later treatment included physical therapy.
day Plaintiff fell, Daniel Swain was working as the Produce
Grocery Manager at the Sam's Club in Washington Township.
He states in his sworn declaration that he coordinated an
investigation per company policy. He verifies that Defendants
have submitted a true and accurate copy of a video showing
Plaintiff's “incident.” (Doc. #18,
PageID #134). He also explains, “[A]s part of
that investigation, I examined the crack in the asphalt of
the crosswalk, where Ms. Bittner claims to have tripped and
fallen…. The subject crack was approximately one inch
across, several feet long, and no deeper than one inch in
depth. I am sure that no part of the crack was deeper than
one inch in depth.” Id.
is entitled to summary judgment when the there is no genuine
dispute over any material fact and the moving party is
entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a);
see Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986); see also Barker v. Goodrich, 649 F.3d 428,
432 (6th Cir. 2011). The burden is on the moving party
“to show that the non-moving party has failed to
establish an essential element of his case upon which he
would bear the ultimate burden at trial.” Guarino
v. Brookfield Tp. Trustees, 980 F.2d 399, 403 (6th Cir.
1992); Street v. J.C. Bradford & Co., 886 F.2d
1472, 1479-80 (6th Cir. 1989).
resolve whether a genuine issue of material fact exists, the
Court draws all reasonable inferences from the underlying
facts in the light most favorable to the non-moving party.
Richland Bookmart, Inc. v. Knox County, Tenn., 555
F.3d 512, 520 (6th Cir. 2009) (citing Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,
587-88 (1986)). With the reasonable inferences in the
forefront, “[t]he central issue is ‘whether the
evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one
party must prevail as a matter of law.'” Jones
v. Potter, 488 F.3d 397, 402-03 (6th Cir. 2007)
(quoting, in part, Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 251-52 (1986) and citing Matsushita
Elec., 475 U.S. at 587).