United States District Court, E.D. Arkansas, Pine Bluff Division
OPINION AND ORDER
LEON HOLMES UNITED STATES DISTRICT JUDGE.
a premises liability case. Aretha Daniels commenced this
action in the Circuit Court of Jefferson County, alleging
that Walgreen Co.'s negligence caused her to fall and
injure herself at a Walgreens pharmacy located in Pine Bluff,
Arkansas. She subsequently filed an amended complaint
alleging violations of federal laws and regulations,
then she filed a second amended complaint alleging an amount
in controversy in excess of $75, 000. Walgreens removed the
case to this Court and has now filed a motion for summary
judgment. For the following reasons, the motion is denied.
should grant summary judgment if the evidence demonstrates
that there is no genuine dispute as to any material fact and
the moving party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a). The moving party bears the initial burden
of demonstrating the absence of a genuine dispute for trial.
Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106
S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). If the moving party
meets that burden, the nonmoving party must come forward with
specific facts that establish a genuine dispute of material
fact. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89
L.Ed.2d 538 (1986); Torgerson v. City of Rochester,
643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). A genuine
dispute of material fact exists only if the evidence is
sufficient to allow a reasonable jury to return a verdict in
favor of the nonmoving party. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91
L.Ed.2d 202 (1986). The Court must view the evidence in the
light most favorable to the nonmoving party and must give
that party the benefit of all reasonable inferences that can
be drawn from the record. Pedersen v. Bio-Med.
Applications of Minn., 775 F.3d 1049, 1053 (8th Cir.
2015). If the nonmoving party fails to present evidence
sufficient to establish an essential element of a claim on
which that party bears the burden of proof, then the moving
party is entitled to judgment as a matter of law.
is “the failure to do something that a reasonably
careful person would do, or the doing of something that a
reasonably careful person would not do, under the
circumstances.” New Maumelle Harbor v.
Rochelle, 338 Ark. 43, 46, 991 S.W.2d 552, 554 (1999).
“The essential elements of a negligence claim are (1)
the existence of a duty on the part of the defendant to
conform to a specific standard of conduct to protect the
plaintiff; (2) breach of that duty by the defendant; (3)
injury to the plaintiff actually and proximately caused by
the defendant's breach; and (4) resulting damage to the
plaintiff or his property.” Cross W. Waste
Indus., 2015 Ark.App. 476, 7, 469 S.W.3d 820, 825
(2015). As a property owner, Walgreens owed a duty to
Daniels, an invitee, to exercise ordinary care to maintain
its premises in a reasonably safe condition. See Cowan v.
Ellison Enter., Inc., 93 Ark.App. 135, 143, 217 S.W.3d
175, 180 (2005).
facts of this case are few and simple. On January 31, 2015,
Daniels visited the Walgreens pharmacy on East Harding Avenue
in Pine Bluff, Arkansas. Daniels entered the pharmacy without
incident, but when leaving she tripped on a mat positioned on
the concrete sidewalk immediately outside the door. Daniels
had visited that Walgreens many times prior to the incident
without trouble. Neither Walgreens nor Daniels knows of
anyone else who tripped on the mat. Walgreens submitted
security footage of Daniels walking over the mat as she
entered the store and tripping over the mat as she exited the
store. Document #21-1. Daniels exited the sliding doors and
stepped onto the mat with her left foot. Then, her right toe
caught the back edge of the mat and lifted it up from
underneath, folding part of it over itself. She then lost her
balance and tripped over the mat. The video shows that at
least the part of the mat that caused Daniels to trip was not
secured to the floor surface.
issue is whether Walgreens breached its duty. Daniels must
show either that the presence of the mat on the floor was the
result of Walgreens's failure to use ordinary care or
that Walgreens knew or reasonably should have known that the
mat was a tripping hazard and failed to use ordinary care to
remove it. See Walmart Stores, Inc. v. Regions Bank Trust
Dept., 347 Ark. 826, 832, 69 S.W.3d 20, 23-24 (2002)
(collecting slip-and-fall cases). Walgreens says that Daniels
has offered no proof of negligence, apart from the fact that
she tripped and fell on the mat. Document #22 at 5. The mere
fact that Daniels tripped and fell is not enough to create a
genuine dispute as to breach. See Conagra, Inc. v.
Strother, 340 Ark. 672, 676, 13 S.W.3d 150, 153 (2000).
See also Alexander v. Town and Country Discount Foods,
Inc., 316 Ark. 446, 447, 872 S.W.2d 390 (1994)
(explaining in case where plaintiff tripped and fell over a
mat as she was entering defendant's store that the
doctrine of res ipsa loquitur does not apply in slip-and-fall
cases). Daniels says that a reasonably careful property owner
would not place an unsecured mat immediately outside a
building's exit. Document #26 at 3.
Arkansas Court of Appeals has explained in a case involving
an invitee who tripped over a doormat what evidence is
necessary to show that a property owner breached its duty. In
AutoZone v. Horton, Wanda Horton fell
walking into an AutoZone store. Autozone v. Horton,
87 Ark.App. 349, 350, 192 S.W.3d 291, 293 (2004). Horton
maintained that her foot got caught in an unsecured doormat
that protruded above an adjacent doormat, which caused her to
fall. Id. AutoZone said it was not negligent and had
no knowledge of any “abnormal condition” of the
former Autozone employees testified at the trial.
Id. at 351, 192 S.W.3d at 293. The first testified
that he tripped over the mats at least twice during his six
and a half years at the store, but that he had no knowledge
of a customer tripping over the mats. Id. The mats
curled up several times as he pushed a dolly over them, but
he straightened them out afterward. Id. The second
employee testified that she had never seen the mats overlap
one another, except for after Horton tripped. Id.
The mats did not curl up when she pushed a dolly over them.
Id. She had no knowledge of anyone other than Horton
tripping over the mats. Id. at 351, 192 S.W.3d at
found for Horton and awarded her $31, 000. Id. at
350-51, 192 S.W.3d at 293. On appeal, AutoZone argued that
“it exercised ordinary care in placing mats in front of
its door, that there was no evidence that the mats were
placed in any way other than a reasonable manner, and that
the mere fact that Horton slipped and fell on the mat does
not give rise to any inference of negligence.”
Id. at 354, 192 S.W.3d at 295. Horton argued the
AutoZone employee's testimony that he had tripped over
the mats and witnessed them curl up was direct evidence that
AutoZone knew the mats were a hazard but did nothing about
it. Id. She also argued that AutoZone should have
known that rolling carts or dollies over the mats would cause
them to curl up, endangering invitees. Id. The court
disagreed with Horton:
Although a former employee of AutoZone testified that he had
tripped on the mat and that it buckled when he rolled a heavy
dolly across it, he testified that he straightened the mat
each time it buckled. He and another former employee stated
that they had not seen anyone trip, and neither of them
testified that they had seen the mat buckle when used by
other employees. Horton herself testified that she observed
the mats to be flat and smooth and that she saw nothing
unusual as she approached them.
The evidence presented, viewed in the light most favorable to
Horton, showed that her shoe was under the mat after she
fell. The jury could only have speculated that any unusual
condition of the mats resulted directly from AutoZone's
negligence, and that such condition of the mats caused Horton
to fall. The evidence does not establish that AutoZone
breached any duty of care to Horton.
Id. at 355, 192 S.W.3d at 296.
facts in this case are similar to those in Autozone
but with one difference: Daniels has presented evidence that
Walgreens' placement of the mat violated the Arkansas
Fire Prevention Code. Document #26 at 8. In Arkansas, the
violation of a statute, code, or regulation does not
constitute negligence per se but may be evidence of
negligence. Cent. Oklahoma Pipeline, Inc. v. Hawk Field
Servs., LLC, 2012 Ark. 157, 17, 400 S.W.3d 701, 712. A
violation of a statute, code, or regulation can be considered
evidence of negligence even if the statute, code, or
regulation is intended to protect a class of persons that
does not include the plaintiff. Koch v. Northport Health
Servs. of Ark., LLC, 361 Ark. 192, 208, 205 S.W.3d 754,
766 (2005) (citing Dunn v. Brimer, 259 Ark. 855,
856-57, 537 S.W.2d 164, 166 (1976)). Even if the regulation
is directed at a situation other than the one at hand, it may
be “evidence of the type of consideration that should
bear on the reasonable person.” Id.
Fire Prevention Act charges the Director of the Arkansas
State Police or the State Fire Marshal with the
responsibility of promulgating and enforcing a fire
prevention code. Ark. Code Ann. § 12-13-101, et.
seq. The Arkansas State Police adopted the current
Arkansas Fire Prevention Code on January 1, 2014. The code is
intended to prevent fires and reduce the number of fire
hazard-related concerns; it establishes minimum rules for
fire and building safety and binds all cities within the
state, though a city is free to enact more stringent rules.
See Ark. Code Ann. § 12-13-108; 42 Ark.
Gov't Reg. 12 (LexisNexis Nov. 2003). Pine Bluff has
formally adopted by reference the current edition of the
code. Pine Bluff, Ark., Code of Ordinances § ...