United States District Court, S.D. Ohio, Eastern Division
DAVID C. COWGILL Plaintiff,
WAL-MART STORES, INC., et al., Defendant.
Kimberly Jolson Magistrate Judge
OPINION & ORDER
ALGENON L. MARBLEY UNITED STATES DISTRICT JUDGE.
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
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,
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?
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
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 ...