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Cowgill v. Wal-Mart Stores East, L.P.

United States District Court, S.D. Ohio, Eastern Division

October 26, 2017

DAVID C. COWGILL Plaintiff,
v.
WAL-MART STORES, INC., et al., Defendant.

          Kimberly Jolson Magistrate Judge

          OPINION & ORDER

          ALGENON L. MARBLEY UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Defendant, Wal-Mart Stores, Inc.'s (“Wal-Mart”) Motion for Summary Judgment (Doc. 18). For the reasons set forth below, the Court DENIES the Motion for Summary Judgment.

         I. BACKGROUND

         A. Factual Background

         Plaintiff David Cowgill operated a construction business, Custom Touch General Construction. (Cowgill Dep. 9-10). On February 13, 2014, Mr. Cowgill went to the branch of Defendant Wal-Mart Stores, Inc., located on Morse Road in Columbus in order to purchase a hitch lockout for one of his work trailers. (Compl. ¶ 1, Cowgill Dep. 16). He testified that when he began walking down the main aisle of the Wal-Mart, he noticed that there were “pallets out to stock the shelves that evening.” (Cowgill Dep. 18). He passed by two of the pallets, and noted that some of the clear cellophane stretch wrap at the top of the pallet had been unwrapped. (Cowgill Dep. 19, 24-25). He did not see, however, that there was a flap of some of the cellophane on the floor of the aisle, in between the pallets. (Cowgill Dep. 19, 25). As he walked between the pallets, the stretch wrap attached to his legs, and, in Mr. Cowgill's words, “it was like someone lassoed my feet and pulled backwards on me.” (Cowgill Dep. 19). Mr. Cowgill fell-hard. As he fell, his hands hit the aisle cap, scattering goods across the aisle. (Cowgill Dep. 34). Then his whole body hit the floor at once, as though he belly-flopped. (Cowgill Dep. 34-35). He testified that he was in immediate pain, and that he quickly developed a knot the size of a golf ball on his knee. (Cowgill Dep. 35, 40).

         After he fell, Mr. Cowgill turned around and saw that he had tripped on the cellophane stretch wrap. (Cowgill Dep. 24). He testified that the cellophane flap extended “[a]t least three feet off of [the] pallet, ” and when later questioned by a Wal-Mart attorney during a deposition, agreed that it may have been three to four feet. Id. The Wal-Mart attorney also probed whether the cellophane would have been visible to Mr. Cowgill had he been looking down:

Q. Was the stretch wrap visible after you fell? You . . . were able to see it?
A. Yes.
Q. So as you stood up after you fell and looked back to see what you had tripped on; you looked and you saw a visible four-foot stretch of wrap?
A. Yes. It was coming from the top part of the pallet, going down to the ground.
. . .
Q. Do you think if you had been looking down prior to your fall, do you think you would have been able to see that stretch wrap?
A. I don't know. . . . [I]f I looked straight down I might have seen it. Let me think. I come around the pallet like this to go through it. I guess if I look straight down right if I was in the middle of that, I possible would have seen it. Once I was beyond it and ...

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