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Bittner v. Walmart Stores Eac, Inc.

United States District Court, S.D. Ohio, Western Division, Dayton

June 19, 2017

CLAUDIA W. BITTNER, et al., Plaintiffs,
v.
WALMART STORES EAC, INC., aka Wal-Mart Stores East, LP,, Defendants.

          DECISION AND ENTRY

          Sharon L. Ovington United States Magistrate Judge

         I. Introduction

         Plaintiff 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.

         II. Background

         On a 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.

         Unbeknownst 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.

         Plaintiff's 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).

         Plaintiff's 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.

         On the 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.

         III. Summary Judgment

         A party 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).

         To 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).

         IV. Discussion

         A. ...


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