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Carolyne Balsamides, and Her Husband, Michael Balsamides v. Wal-Mart Stores

May 31, 2011


The opinion of the court was delivered by: Walls, Senior District Judge



Defendant Wal-Mart Stores, Inc. ("Wal-Mart") moves for summary judgment on all claims against plaintiffs Carolyne Balsamides and Michael Balsamides. The plaintiffs oppose the motion. Pursuant to Rule 78 of the Federal Rules of Civil Procedure, the motion is decided without oral argument. Defendant's motion for summary judgment is denied.


The facts viewed in the light most favorable to the plaintiffs are: On March 17, 2005, Carolyne Balsamides ("plaintiff") and her godmother, Lynn Markus, were shopping in a Wal-Mart store located in Woodbridge, New Jersey. Plaintiff had been in the store for approximately half an hour when she slipped and fell on spilled baby oil in the beauty aisle. The baby oil was clean and clear, and Balsamides did not see the oil before she fell. After she fell, Balsamides noticed that oil was under her entire body. (Pl. Ex. A, Balsamides Dep. 19:6-7.) She testified that there was there "quite a bit [of oil] towards the end of that aisle," and that the oil was "pretty much" covering the width of the aisle. (Id. at 20:10-17.) The plaintiff testified that the oil did not appear to have foot prints in it, and she did not know whether it had shopping cart tracks through it. (Id. at 21:2-5.) She was unable to identify the source of the spilled oil. (Id. at 21:12-21.) She did not see any broken bottles of baby oil on the floor, or any open bottles of baby oil on a nearby shelf. (Id.)

Lynn Markus was walking behind Balsamides pushing a cart. (Id. at 18:2-4; Pl. Ex. C, Markus Aff. ¶ 3.) She witnessed Balsamides fall. Markus did not see the baby oil on the floor before Balsamides fell. (Id.) Afterwards, she noticed baby oil spilled over a large area in the aisle. (Id. at ¶ 4.) She noticed shopping cart tracks running through the oil, which dragged the oil out from the spill area. (Id. at ¶ 5.) She said it appeared that there were multiple shopping cart tracks through the oil. (Id.)

The beauty aisle was located near the pharmacy. After she fell, the plaintiff sat on a bench in the pharmacy area. The assistant store manager, Jacqueline Perun, came over to speak with her. After she took plaintiff's information for the Incident Report, she went to the location of the spill. (Df. Ex. C, Perun Dep. 30:13-21.) Perun testified that the spill was difficult to locate, because it was clear, but she eventually found it. (Id.) The Incident Report contains very little detail about the spill; it only indicates that there was a "baby oil spill" and that "someone dripped oil" in the aisle. (Df. Ex. D, Incident Report.)

The plaintiff states that another Wal-Mart customer came up to her as Perun was taking her report. This woman stated in the presence of Perun, Balsamides and Markus that she saw the oil spill in the beauty aisle. (Pl. Ex. A, Balsamides Dep. 23:6-24:5; Pl. Ex. C, Markus Aff. ¶ 6.)

She waited "quite a while" in the aisle hoping to spot a passing Wal-Mart employee, but when no employee came, she went to the courtesy desk to report the spill. (Id.)

Perun also testified generally about the training that all Wal-Mart employees receive on store safety issues (Df. Ex.C, Perun Dep. 9:20-11:16). She said that safety inspections are performed daily before the store's opening and periodically throughout the day (Id. at 17:21-21:11). However, she did not testify specifically about any inspections done on the day of plaintiff's fall.


Summary judgment is appropriate where the moving party establishes that "there is no genuine issue as to any material fact and that [it] is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(a). A factual dispute between the parties will not defeat a motion for summary judgment unless it is both genuine and material. See Scott v. Harris, 550 U.S. 372, 380 (2007); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A factual dispute is genuine if a reasonable jury could return a verdict for the non-movant and it is material if, under the substantive law, it would affect the outcome of the suit. See Anderson, 477 U.S. at 248. The moving party must show that the non-moving party has failed to "set forth," by affidavits or otherwise, "specific facts showing that there is a genuine issue for trial." See Beard v. Banks, 548 U.S. 521, 529 (2006) (citing Fed. R. Civ. P. 56(e)).

Once the moving party has carried its burden under Rule 56, "its opponent must do more than simply show that there is some metaphysical doubt as to the material facts" in question. Scott, 550 U.S. at 380 (citing Matsushita Elec. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)). At the summary judgment stage, the court's function is not to weigh the evidence and determine the truth of the matter, but rather to determine whether there is a genuine issue of fact for trial. See Anderson, 477 U.S. at 249. In so doing, the court must construe the facts and inferences in the light most favorable to the non-moving party. Curley v. Klem, 298 F.3d 271, 277 (3d Cir. 2002). To survive a motion for summary judgment, a non-movant must present more than a mere "scintilla of evidence" in his favor. ...

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