United States District Court, S.D. Ohio, Eastern Division
Chelsey M. Vascura Magistrate Judge.
OPINION AND ORDER
A. SARGUS, JR. CHIEF JUDGE
shopping at Wal-Mart, a box containing a cast iron griddle
fell on Plaintiff Canda Clark's foot and broke three of
her toes. She brought a negligence claim under Ohio law that
was later removed to this Court. Defendant Wal-Mart Stores,
Inc. has now moved for summary judgment. For the following
reasons, that Motion (ECF No. 24) is DENIED.
2, 2014, Plaintiff Canda Clark and her boyfriend, Michael
Church, went to Wal-Mart to buy two basketball hoop sets.
(Clark Dep. at 17-20, ECF No. 25-1.) When they arrived, Clark
and Church retrieved a shopping cart and started walking
toward the store's sporting goods section. (Id.
at 20.) As they walked down the camping supply aisle, Clark
was looking at the tents to her left. (Id. at 21.)
Clark suddenly stopped when she noticed that something had
landed on her foot. (Id.) Clark looked down and saw
a long, thin box on her right foot. (See Id. at
24-25.) The box was heavy, and Clark could not lift it off
her foot, so Church moved it for her. (Id. at 22,
25.) Church informed a Wal-Mart employee about the incident,
and Clark was eventually provided an electric cart to sit on
while she completed an accident report. (Id. at
attending to her foot, Clark realized that the box that had
fallen on her foot contained a cast iron griddle. (Clark Dep.
at 25.) An employee had moved the fallen box; Clark, however,
saw that other griddle boxes were situated on an elbow-height
shelf that she was walking by when the box fell. (See
Id. at 23, 25, 31.) Clark noticed that one griddle box
was extending beyond the front edge of the shelf. (See
Id. at 23, 25.) Behind that box, deeper on the shelf,
were several stacked griddle boxes. (See Id. at
32-33, Ex. 1.)
submitted by the parties show the griddle boxes on the shelf
after the incident. (Photos at PageID 214, 216-22, ECF Nos.
39-2, 39-3.) The box that fell on Clark is not included in
the photographs. (See Clark Dep. at 23.) The
photographs show a stack of griddle boxes at the rear of the
shelf and one griddle box sitting in front of the stack.
(Photos at PageID 214, 216-22.) At least a third of the
length of the front box extends beyond the shelf s front
edge. (Id.) The shelf is a light tan color; the
floor is white; and the stacked griddle boxes are yellow on
their sides. (Id.) The box extending beyond the
shelf s front edge is also yellow on its sides; the top of
the box features an image of a cast iron griddle.
the photographs depict a shopping cart handle in contact with
the griddle box protruding from the shelf. (Photos at PageID
214, 218-19, 221-22.) A Wal-Mart employee who responded to
the incident staged these photographs. (See Resp. at
2-3, 11, ECF No. 39; Wentzel Dep. at 16-17, 20, ECF No.
40-2.) Clark speculates that this staging depicts how the
incident occurred: her shopping cart's handle struck a
griddle box as she walked down the aisle, causing the box to
fall on her foot. (See Clark Dep. at 29; Resp. at
2-3, 10-11; Wentzel Dep. at 16.)
acknowledged in her deposition that if she had looked to her
right as she walked down the aisle there was nothing that
would have blocked her view of the griddle boxes.
(See Clark Dep. at 26-29.) There was nothing in
Clark's shopping cart, and the store was well lit.
(Id. at 29, 34.) Clark also acknowledged that the
box that fell was visible after it landed on her foot.
(See Id. at 24-25.)
the griddle box landed on her right foot, Clark felt a sharp
pain. (Clark Dep. at 37-38.) Clark's foot continued to
hurt, and it later swelled and bruised. (See Id. at
42.) Clark saw her doctor several days later: three of her
toes were broken. (Id. at 40, 43.) Because of her
broken toes, Clark started walking on her heel and the side
of her foot; this altered gait aggravated an existing
condition with her right knee. (See Id. at 53, 65.)
Clark has undergone two surgeries related to her broken toes,
and she has had her right knee replaced. (Id. at
brought a state-law negligence claim against Wal-Mart on
April 27, 2016, in the Delaware County Common Pleas Court.
(Compl. at 1-3, ECF No. 2.) Wal-Mart removed the action to
this Court on May 24, 2016, on the basis of diversity
jurisdiction. (Notice of Removal at 1-2, ECF No. 1.) Wal-Mart
now moves for summary judgment. (Mot. at 1, ECF No. 24.)
judgment is appropriate "if the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a). The movant has the burden of establishing
that there are no genuine issues of material fact, which may
be accomplished by demonstrating that the nonmoving party
lacks evidence to support an essential element of its case.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986); Barnhart v. Pickrel, Schaeffer & Ebeling
Co., 12 F.3d 1382, 1388-89 (6th Cir. 1993). When the
moving party has carried this burden, the nonmoving party
must then set forth specific facts showing that there is a
genuine issue for trial. Moldowan v. City of Warren,
578 F.3d 351, 374 (6th Cir. 2009).
the parties have presented their evidence, 'the
judge's function is not himself to weigh the evidence and
determine the truth of the matter, but to determine whether
there is a genuine issue for trial.'"
Moldowan, 578 F.3d at 374 (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). In
evaluating the evidence, the Court must draw all inferences
in the light most favorable to the nonmoving party.
Id. The nonmoving party, however, cannot establish a
genuine issue for trial by producing a mere scintilla of
evidence in support of its position. Anderson, 477
U.S. at 251; see also Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986) (showing
the existence of "some metaphysical doubt as to the
material facts" does not create a genuine issue for
trial). A genuine issue for trial exists only "if the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party." Anderson, 477
U.S. at 248.
prevail on a negligence claim under Ohio law, a plaintiff
must show the existence of a duty, the breach of that duty,
and an injury proximately caused by the breach. Texler v.
D.O. Summers Cleaners & Shirt Laundry Co., 693
N.E.2d 271, 274 (Ohio 1998). Because Clark purportedly cannot
establish any of these elements, Wal-Mart requests summary
argues that it did not owe a duty to Clark because, as a
matter of law, the griddle box was an open and obvious
hazard. (See Mot. at 4-7, ECF No. 24.) The Court
general, the legal status of a person (i.e., trespasser,
licensee, or invitee) injured on real property determines the
scope and extent of the duty owed to the injured person by
the owner or occupier of the property. Benton v. Cracker
Barrel Old Country Store, Inc., 1 Oth Dist. Franklin No.
02AP-1211, 2003-Ohio-2890, ¶ 12. Here, given that Clark
entered the store, "by invitation, express or implied,
for some purpose which [was] ...