United States District Court, D. New Jersey
L. HILLMAN, U.S.D.J.
a slip-and-fall action in which Plaintiff Kelliann Nelson
(“Plaintiff”) alleges that she fell while
visiting a Walmart Store located in Lumberton, New
Jersey. Defendant Wal-Mart Stores, Inc.
(“Defendant” or “Walmart”) moves for
summary judgment pursuant to Rule 56 of the Federal Rules of
Civil Procedure (the “Motion”). (ECF No. 12). For
the reasons expressed below, Defendant's Motion will be
Court draws its facts from the parties' statements of
undisputed material fact. The Court will note any factual
disputes where relevant.
April 10, 2016, Plaintiff and her twelve-year-old
granddaughter entered a Walmart store located in Lumberton,
New Jersey. (ECF No. 12-3 (“Def. SOMF”),
¶¶2, 34). Plaintiff headed for the girl's
clothing section, which is described as being at least 100
feet from the entrance. See (ECF No. 13-2
(“Pl. Dep.”) at 1T32:1-12). While in route to the
clothing section, Plaintiff slipped and fell on what she
describes as a wipe, brownish in color, dry, and dusty. (ECF
No. 13 (“Pl. SOMF”), ¶¶5-6, 8).
testified at her deposition that the store provided cart
wipes near the entrance for customers to use in cleaning
shopping carts, but Plaintiff could not say whether the wipe
she slipped on was one similar to the kind provided by the
store. (Def. SOMF, ¶9). Plaintiff conceded, however,
that the item she slipped on could have been a baby wipe or
some other type of debris. (Def. SOMF, ¶14). Plaintiff
does not know how or when the alleged-wipe came to be on the
floor. (Def. SOMF, ¶¶11-13; Pl. SOMF, ¶10).
There were no witnesses to the incident other than, possibly,
Plaintiff's granddaughter. (Def. SOMF, ¶15; Pl. SOMF,
falling, Plaintiff rose to her feet and continued shopping.
(Pl. SOMF, ¶11). Plaintiff did not report the incident
to anyone before leaving the store. (Def. SOMF, ¶17).
hours later, Plaintiff's leg began to swell. (Pl. SOMF,
¶11). In light of the swelling, Plaintiff decided to
return to the store to report the incident. (Pl. SOMF,
¶12; Def. SOMF, ¶¶17-19). Plaintiff spoke with
the manager on duty and was asked to fill out an incident
report. (Pl. SOMF, ¶12; Def. SOMF, ¶19). In the
incident report, Plaintiff explained, in her own words, that
she “was walking down the front [a]isle . . . [and]
fell on floor on right knee[.]” (Def. SOMF, ¶20).
Nowhere in the incident report does Plaintiff or the manager
on duty indicate that a wipe or any other object facilitated
Plaintiff's fall. (Def. SOMF, ¶21; Pl. SOMF,
¶13). After completing the incident report, Plaintiff
drove to the local emergency room. (Pl. SOMF, ¶14).
surveillance cameras did not capture footage from the
purported incident, and no pictures were taken due to the
lapse in time between Plaintiff's reporting of the
incident and the actual occurrence. (Def. SOMF,
complaint - initially filed on April 3, 2018 in the Superior
Court of New Jersey, Law Division, Burlington County - was
removed to this Court by Defendant on May 1, 2018. (ECF No.
1). Thereafter, Defendant filed the present Motion for
Summary Judgment (ECF No. 12), which Plaintiff opposes (ECF
No. 13). As such, the Motion is ripe for disposition.
Subject Matter Jurisdiction
Court has subject matter jurisdiction over this case pursuant
to 28 U.S.C. § 1332.
Motion for Summary Judgment Standard
judgment is appropriate where the Court is satisfied that
“‘the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits if any,' . . . demonstrate the absence of a
genuine issue of material fact” and that the moving
party is entitled to a judgment as a matter of law.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986) (citing Fed.R.Civ.P. 56).
issue is “genuine” if it is supported by evidence
such that a reasonable jury could return a verdict in the
nonmoving party's favor. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A fact is
“material” if, under the governing substantive
law, a dispute about the fact might affect the outcome of the
suit. Id. “In considering a motion for summary
judgment, a district court may not make credibility
determinations or engage in any weighing of the evidence;
instead, the non-moving party's evidence ‘is to be
believed and all ...