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Wagoner v. Dollar General Corp.

United States District Court, Tenth Circuit

June 26, 2013

CONSTANCE WAGONER, Plaintiff,
v.
DOLLAR GENERAL CORPORATION and DG RETAIL, LLC, Defendants.

MEMORANDUM AND ORDER

JULIE A. ROBINSON, UNITED STATES DISTRICT JUDGE

On December 15, 2011, Defendant Dollar General Corporation removed this action from Kansas state court. Plaintiff Constance Wagoner originally filed a complaint alleging negligence, specifically premises liability, and seeking damages against Dollar General Corporation resulting from her trip and fall on or about November 7, 2010, within a Dollar General store in Park City, Kansas. Plaintiff added DG Retail, LLC as a co-defendant on March 28, 2012. This matter is before the Court on Defendants’ Motion for Partial Summary Judgment (Doc. 44). The motion is fully briefed and ready for the Court’s ruling. As described more fully below, the Court grants Defendants’ motion in part and denies in part.

I. Summary Judgment Standard

Summary judgment is appropriate if the moving party demonstrates that there is “no genuine issue as to any material fact” and that it is “entitled to judgment as a matter of law.”[1] In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party.[2] A fact is “material” if, under the applicable substantive law, it is “essential to the proper disposition of the claim.”[3] An issue of fact is “genuine” if “the evidence, construed in the light most favorable to the nonmoving party, is such that a reasonable jury could return a verdict for the nonmoving party.”[4]

The moving party initially must show the absence of a genuine issue of material fact and entitlement to judgment as a matter of law.[5] In attempting to meet this standard, a movant that does not bear the ultimate burden of persuasion at trial need not negate the other party’s claim; rather, the movant need simply point out to the court a lack of evidence for the other party on an essential element of that party’s claim.[6]

Once the movant has met this initial burden, the burden shifts to the nonmoving party to “set forth specific facts showing that there is a genuine issue for trial.”[7] The nonmoving party may not simply rest upon its pleadings to satisfy its burden.[8] Rather, the nonmoving party must “set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant.”[9] To accomplish this, the facts “must be identified by reference to an affidavit, a deposition transcript, or a specific exhibit incorporated therein.”[10] Rule 56(c)(4) provides that opposing affidavits must be made on personal knowledge and shall set forth such facts as would be admissible in evidence.[11] The non-moving party cannot avoid summary judgment by repeating conclusory opinions, allegations unsupported by specific facts, or speculation, ”[12] and “cannot rest on ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the mere hope that something will turn up at trial.”[13]

Finally, summary judgment is not a “disfavored procedural shortcut”; on the contrary, it is an important procedure “designed to secure the just, speedy, and inexpensive determination of every action.”[14]

II. Uncontroverted Facts:

Dollar General Retail, LLC (“DG Retail”) does business as Dollar General. DG Retail is a subsidiary of Dollar General Corporation (“DGC”). DG Retail owns and operates the store where the accident occurred and manages the store and all its employees. DGC does not own, lease, or operate the store.

On or about November 7, 2010, Plaintiff entered the Dollar General store located in Park City, Kansas, where she tripped on a folded-over corner of a mat placed just inside the entrance of the store. Surveillance video shows that about five minutes before Plaintiff entered the store, the corner of the mat was kicked over by a customer. The surveillance video further shows four shoppers crossed the mat without any problems in the time between when the mat was flipped over and when Plaintiff tripped over the mat.

As Plaintiff entered the store, she stepped on a folded-over corner of the mat with her left foot. She then took a step forward with her right foot. Her right foot got caught up in the folded portion of the mat. Because her left foot was holding down the corner, the “loop” trapped her right foot and caused Plaintiff to lose her balance and fall forward. Plaintiff landed on her right arm, which fractured about two inches below the shoulder.

Plaintiff was not looking down at the ground where she was walking but instead was looking straight ahead or to the side as she entered. Nothing obstructed Plaintiff’s view of the floor mat, and the store was well-lit. Plaintiff testified at her deposition that if she were looking down, her fall would probably not have occurred.

The mat Plaintiff tripped over is rectangular in shape and measures approximately 62 and 1/4 inches by 39 and 3/4 inches. The mat has rounded corners and an anti-skid backing and is about 1/4 inches thick.

Plaintiff’s daughter testified she entered the same Dollar General store on or about May 5, 2010, when she accidently kicked over a corner of the mat. The daughter further testified she stopped to fix the mat but did ...


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