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Nelson v. Wal-Mart Stores, Inc.

United States District Court, D. New Jersey

October 22, 2019

KELLIANN NELSON, Plaintiff,
v.
WAL-MART STORES, INC.; JOHN DOES 1-10, fictious individuals; and ABC COMPANIES 1-10, fictitious business entities, Defendants.

          OPINION

          NOEL L. HILLMAN, U.S.D.J.

         This is 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.[1] 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 granted.

         BACKGROUND

         The Court draws its facts from the parties' statements of undisputed material fact. The Court will note any factual disputes where relevant.

         On 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).

         Plaintiff 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.[2] (Def. SOMF, ¶15; Pl. SOMF, ¶9).

         After 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).

         Several 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).

         Walmart's 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, ¶¶26-27).

         Plaintiff's 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.

         ANALYSIS

         A. Subject Matter Jurisdiction

         This Court has subject matter jurisdiction over this case pursuant to 28 U.S.C. § 1332.

         B. Motion for Summary Judgment Standard

         Summary 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).

         An 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 ...


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