United States District Court, W.D. Arkansas, Harrison Division
MEMORANDUM OPINION AND ORDER
TIMOTHY L. BROOKS UNITED SJATES DISTRICT JUDGE
Currently
before the Court is Defendant Dolgencorp, LLC d/b/a Dollar
General's ("Dollar General") motion for summary
judgment (Doc. 16).[1] Plaintiff Cindy Kennaly has filed a
response in opposition (Doc. 19). No. reply was filed. For
the reasons that follow, Dollar General's motion is
DENIED.
I.
BACKGROUND
On July
11, Ms. Kennaly went to the Dollar General store in Marshall,
Arkansas, to shop. Upon entering the store, she picked up a
shopping basket and turned into an aisle on her left to shop
for backpacks. After leaving the backpack aisle, she walked
toward the front of the store and then entered the shoe aisle
where she proceeded to look at items on the shelves. She then
set her shopping basket down and began to look at sandals on
a particular shelf. After she finished looking at the
sandals, she backed up (while still looking toward the
merchandise on the shelf) and walked down the aisle, where
she tripped over a sock display that was in the aisle.
Plaintiff
filed her complaint in the Circuit Court of Searcy County in
June of 2018 asserting that Dollar General was negligent by,
inter alia, placing a tripping hazard in the aisle
of its store, failing to detect and remove such a hazard
within a reasonable time, failing to properly maintain the
premises in a safe condition, and failing to warn its
customers of the unsafe condition of the aisle. Defendants
subsequently removed the case to this Court, invoking the
Court's diversity jurisdiction. After discovery ended,
Dollar General filed the present motion for summary judgment.
II.
LEGAL STANDARD
The
legal standard for summary judgment is well established.
Under Federal Rule of Civil Procedure 56(a), "[t]he
court shall grant summary judgment 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." The
Court must review the facts in the light most favorable to
the party opposing the motion and give that party the benefit
of any inferences that can be drawn from those facts.
Canada v. Union Bee. Co., 135 F.3d 1211, 1212-13
(8th Cir. 1997). The moving party bears the burden of proving
the absence of a genuine dispute of material fact and that it
is entitled to judgment as a matter of law. See Fed.
R. Civ. P. 56(c); Murchison v. Rogers, 779 F.3d 882,
887 (8th Cir. 2015); Matsushita Bee. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586-87 (1986).
III.
DISCUSSION
Dollar
General's motion is entirely predicated on the argument
that any duty it would otherwise have owed to Plaintiff was
eliminated by the fact that the dangerous condition (here,
the sock display on the floor) was open and obvious. Under
governing Arkansas law, "[a] property owner has a
general duty to exercise ordinary care to maintain the
premises in a reasonably safe condition for the benefit of
invitees." Black v. Wal-Mart Stores, Inc., 316
Ark. 418, 419 (1994). An exception to this general rule
exists, however, for open and obvious dangers. Under the
obvious danger rule, "any duty owed by an owner or
occupier of land to a business invitee ends if the plaintiff
knows of the danger." Jenkins v. Int'l Paper
Co., 318 Ark. 663, 670 (1994). A few definitions are in
order before moving to the analysis of whether this condition
was an open and obvious danger. As Arkansas courts have held,
a dangerous condition is obvious "when both the
condition and the risk are apparent to and would be
recognized by a reasonable man, in the position of the
visitor, exercising ordinary perception, intelligence, and
judgment." Van DeVeer v. RTJ, Inc., 101 S.W.3d
881, 885 (Ark. Ct. App. 2003). Moreover, before the obvious
danger rule applies, the danger must also be known to the
plaintiff, which means "not only knowledge of the
existence of the condition or activity itself, but also
appreciation of the danger it involves." Id. In
other words, before a landowner's duty is extinguished,
"the condition or activity must not only be known to
exist, but it must also be recognized that it is dangerous,
and the probability and gravity of the threatened harm must
be appreciated." Id.
Dollar
General argues that Plaintiff's deposition testimony and
the surveillance footage from the store establish that
Plaintiff knew about the presence of the sock display when
she was shopping. Therefore, it argues, the display was an
open and obvious danger and any duty it would otherwise have
owed to her ended. The Court does not agree, especially when
it considers-as it must on a motion for summary judgment-the
evidence in the light most favorable to Plaintiff.
Dollar
General is certainly correct that courts have granted summary
judgment in these types of cases where plaintiffs were aware
of the danger that allegedly caused the injury. See,
e.g., Jenkins, 318 Ark. at 671 ("There is no
question in the instant case that Roy Jenkins knew of the
slippery substance on the premises. He admits it, and that
admitted fact brings into play the obvious danger
rule."). But, despite its best arguments to the
contrary, Dollar General has not demonstrated that Plaintiff
was aware of the sock display before she tripped and fell
over it. In fact, Plaintiffs testimony at her deposition is
that she simply cannot recall whether she saw the sock
display when she entered the aisle or as she was shopping. In
fact, in three separate portions of her deposition, she
expressly declined to state that she saw the sock display:
Q: All right. And so you, in fact, saw the sock display as
you walked into the aisle, correct?
A: I'm not sure if I saw it when I walked in or not.
(Doc. 17-1, p. 5).
Q: Sure. Based upon what you now know, including looking at
the video, and describing to me how you fell, can you say,
Ms. Kennaly, that you must have walked past the sock display
as you ...