ORDER

MYRON THOMPSON, District Judge

Plaintiff Annie Ryles brings this lawsuit claiming that defendant Wal-Mart Stores East, L.P. negligently and wantonly caused a small box to be placed on the floor of a store aisle, leading Ryles to trip and fall. The court's jurisdiction is proper under 28 U.S.C.A. § 1332 (diversity).

This case is now before the court on Wal-Mart's motion for summary judgment. The motion will be denied on the negligence claim and granted on the wantonness claim.

I. SUMMARY-JUDGMENT STANDARD

Summary judgment is proper where "there is no genuine issue as to any material fact" and "the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2510 (1986). Only factual disputes that are material under the substantive law governing the case will preclude entry of summary judgment. Id.

Where, as here, the non-moving party bears the burden of proof at trial, "the moving party, in order to prevail, must do one of two things: show that the non-moving party has no evidence to support . . . [her] case, or present `affirmative evidence demonstrating that the non-moving party will be unable to prove . . . [her] case at trial.'" Hammer v. Slater, 20 F.3d 1137, 1141 (11th Cir. 1994) (quoting United States v. Four Parcels of Real Property, 941 F.2d 1428, 1437-38 (11th Cir. 1991) (en banc)). Once the party seeking summary judgment has informed the court of the basis for its motion, the burden shifts to the non-moving party to show that a genuine issue of material fact exists. Id. In making its determination, the court must view all evidence and any factual inferences in the light most favorable to the non-moving party.Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356 (1986).

II. FACTUAL BACKGROUND

Ryles began working at Wal-Mart in 1987, and, at the time of incident which gave raise to this cause of action, was working as a sales associate in cosmetics at the Troy, Alabama store. On May 15, 2002, she worked from 3:00 or 4:00 p.m. until 10:30 or 11:00 p.m. After clocking out, she walked to the grocery side of the store in order to purchase sugar, flour, and lemon flavoring. Boxes of merchandise were arranged down the center of the aisle, waiting to be stocked. While examining a container of lemon flavoring, Ryles tripped over a brown box, slightly larger than a shoe box, resting on the white floor by a counter. She subsequently experienced neck and shoulder pains and underwent surgery for injuries to her neck.

III. DISCUSSION A. Negligence

The parties agree that Ryles was a business invitee on Wal-Mart's premises. As such, in order to succeed on her claim of negligence, Ryles may prove that she fell on a foreign substance and that Wal-Mart (1) had actual or constructive notice of the foreign substance on the floor or (2) was delinquent in not discovering and removing the substance. Riverview Regional Medical Center, Inc. v. Williams, 667 So.2d 46, 48 (Ala. 1995). The mere presence of a foreign substance on a store floor does not of itself show a lack of reasonable care, and no presumption of negligence arises from the single fact of injury to an invitee. See, e.g., Shaw v. City of Lipscomb, 380 So.2d 812, 814 (Ala. 1980); Collum v. Jackson Hospital Clinic, Inc., 374 So.2d 314, 315 (Ala. 1979).

1.

It is undisputed that Ryles fell on a foreign substance at Wal-Mart. However, she presents no evidence that Wal-Mart had actual notice of the box on the floor; if anything, she presents evidence to the contrary, having testified that she saw no Wal-Mart employee who might have noticed the box in the aisle in which she was shopping during the five to ten minutes that she was there. Nor does Ryles present evidence of constructive notice to Wal-Mart. In order to demonstrate constructive notice, she must offer evidence "that the substance slipped upon had been on the floor a sufficient length of time" to impute notice to the defendant. Wal-Mart Stores, Inc. v. Tuck, 671 So.2d 101, 104 (Ala.Civ.App. 1995). In the instant case, the box appears to have been on the floor at least during the five to ten minutes that Ryles spent in the aisle; Ryles does not otherwise know how long the box was there.

"It is not always necessary . . . to offer direct evidence as to the length of time a foreign substance has remained on the floor," for this lack of evidence might be excusable "where the [foreign] substance is dirty, crumpled, mashed or has some other characteristic which makes it reasonable to infer that the substance has been on the floor long enough to raise a duty on the defendant to discover and remove it." Cash v. Winn-Dixie Montgomery, Inc., 418 So.2d 874, 876 (Ala. 1982). See also Great Atlantic Pacific Tea Co. v. Bennett, 103 So.2d 177 (Ala. 1958) (finding constructive notice where lettuce leaf upon which plaintiff slipped had been "rolled, pushed or crumpled."). Where, as in the instant case, there is no evidence of a reasonably specific time frame and "no evidence that the [box] had been on the floor long enough to have been bent, mashed or mutilated in any manner," Cash, 418 So.2d at 876, the court will not simply assume constructive notice. See also Flagstar Enterprises, Inc. v. Bludsworth, 696 So.2d 292, 295 (Ala.Civ.App. 1996) (in case in which plaintiff slipped on french fries, directed verdict was appropriate where "[t]here was no evidence in the record that [the defendant] knew that the french fries were on the floor or that the french fries had been on the floor for such an inordinate length of time as to impute constructive notice.").

While it is conceivable that five to ten minutes might constitute constructive notice under some circumstances, five to ten minutes (which is the only time frame which Ryles can testify, with any confidence, that the box was on the floor) is insufficient to constitute constructive notice in this case. Ryles was shopping late at night, and she saw no customers in the aisle during her entire time there. It would be unreasonable to expect Wal-Mart employees to scout the floor of the entire store every five to ten minutes during non-busy, late-night hours, in search of items that may potentially cause customers to trip. See, e.g., Hale v. City of Tuscaloosa, 449 So.2d 1243 (Ala. 1984) (35 minutes was too short to provide constructive notice to city of a dangerous road condition that occurred late at night). Consequently, the court is not able to impute constructive notice of the brown box to Wal-Mart.

2.

Ryles may also succeed on her claim of negligence if she can demonstrate that Wal-Mart was delinquent in not discovering and removing the box. Riverview Regional Medical Center, Inc., 667 So.2d at 48. In King v. Winn-Dixie of Montgomery, Inc., 565 So.2d 12 (Ala. 1990), the plaintiff slipped and fell on water on the floor of a grocery store. Although store management testified that the floors were mopped every 30 minutes or as needed, the Alabama Supreme Court overturned the circuit court's summary judgment against the plaintiff's negligence claim. It held that it could not be concluded, as a matter of law, that the store was not delinquent in failing to discover the water and mop it up before the plaintiff fell. Id. at 13. Likewise, in this case, the court cannot conclude, as a matter of law, that Wal-Mart was not delinquent in failing to discover and remove a box from a shopping aisle, where it had remained for several minutes. As discussed above, the precise time period during which the box remained on the floor as well as the manner in which the box came to be on the floor are uncertain. Yet whether the box's presence on the aisle floor for several minutes constituted delinquent behavior on Wal-Mart's part raises material issues of fact which it would be inappropriate for the court to decide on summary judgment.

Wal-Mart's primary argument for dismissing the negligence claim is that the brown box constituted an obvious danger of which Ryles should have been aware had she been exercising ordinary care. It is true that, "as a general rule, an invitor will not be liable for injuries to an invitee resulting from a danger which was known to the invitee or should have been observed by the invitee in the exercise of reasonable care." Quillen v. Quillen, 388 So. 2d 985 (Ala. 1980). Yet, in facts strikingly similar to the instant case, the Alabama Supreme Court held inWilliams v. Bruno's, Inc., 632 So.2d 19 (Ala. 1993), that the plaintiff, a customer in a grocery store who had slipped on objects lying on the floor, could survive summary judgment on the question of whether the objects on the floor had constituted an "open and obvious condition." Id. at 22. The court held that "[o]ne could reasonably infer from th[e] testimony that [the plaintiff] was focusing his attention on the shelves, not that he was looking where he was going. Nowhere in [the plaintiff]'s testimony does he say that the strips were obvious to him before he fell; in fact, [the plaintiff] stated that he did not see the strips until he fell." Id.

Similarly, in Harris v. Flagstar Enterprises, Inc., 685 So.2d 760 (Ala.Civ.App. 1996), the plaintiff slipped on sand and cigarette butts in a store's parking lot. Although the plaintiff testified that she probably would have noticed the debris had she looked down, the court of civil appeals held that the trial court had erred in granting summary judgment against the plaintiff's negligence claim. The appellate court observed: "Whether the offending substances created an open and obvious danger and whether [the plaintiff] failed to exercise reasonable care in not noticing the danger are issues appropriately decided by the jury." Id. at 762-63.

Ryles denies having seen the box prior to her fall and only subsequently realized that it was lying in the aisle. The above cases, therefore, clearly indicate that her failure to stare at the floor while walking down the shopping aisle, in particular where the store sought to draw her attention to its shelves, does not prevent her negligence claim from surviving summary judgment. Moreover, Alabama courts have been more willing to allow juries to decide what constitutes an "open and obvious" condition.See, e.g., Boudousquie v. Marriott Mgmt. Servs. Corp., 669 So.2d 998, 1000 (Ala.Civ.App. 1995) (summary judgment was inappropriate where, although plaintiff may have recognized the open and obvious condition of a single step upon entering a restroom, he may not have recognized the dangerous potential of the step at the time he left the restroom); Banks v. Bayou Bend II, Ltd., 552 So.2d 1070 (Ala. 1989) (summary judgment was inappropriate where sufficient question existed as to whether a rotten stair beam was an open and obvious danger). The fact that Ryles testified that the box was "pushed up against the baseboard" of a counter also militates against the conclusion that its presence was open and obvious.

Wal-Mart argues that Alabama law has evolved since Williams and currently favors viewing more expansively the conditions that are, as a matter of law, open and obvious. In support of this argument, it cites three opinions from the Court of Civil Appeals of Alabama; however all three cases are factually distinguishable from the instant case. InBrowder v. Food Giant, Inc., 854 So.2d 594, 596 (Ala.Civ.App. 2002), the plaintiff, who had tripped over a hole in the pavement, stated that "she does not normally look in front of her while walking" and "`wasn't paying attention'" when she tripped. Similarly, in Bud's Outlet Wal-Mart Stores, Inc. V. Smith, 781 So.2d 219, 222-23 (Ala.Civ.App. 2000), the plaintiff, who had tripped over a wheelchair, "was distracted either by her grandson or by her daughter at the time of her fall." In contrast, Ryles "could have been watching where she was going, but simply not looking at the floor." Blizzard v. Food Giant Supermarkets, Inc., 196 F.Supp.2d 1202, 1208 (M.D. Ala. 2002) (denying motion for summary judgment in case where plaintiff had tripped over a metal platform in a grocery store aisle).

In the final case cited by Wal-Mart in support of its argument that the box over which Ryles tripped was an open and obvious danger, Douglas v. Devonshire, 833 So.2d 72 (Ala.Civ.App. 2002), a mail carrier fell in a hole in a parking lot. After noting that "[t]he question of the openness and obviousness of a danger is generally not to be resolved on a motion for summary judgment," id. at 75, the appellate court upheld a summary judgment because had the plaintiff "been exercising ordinary care, she would have seen the hole before stepping out of the postal truck and avoided injury." Id. While there is no indication that the plaintiff in Douglas was as distracted as the plaintiffs in Browder and Bud's, it is more reasonable to expect a driver exiting her vehicle to watch her step than it is to expect a customer browsing the produce in a grocery aisle to be watching the floor instead of the shelves. Ryles was doing exactly what Wal-Mart would expect and hope its customers to do in its stores — examining the produce in order to determine whether to make a purchase.

Accordingly, the court finds that the brown box did not, as a matter of law, constitute an open and obvious danger of which Ryles should have been aware.

B. Wantonness

Wantonness is statutorily defined, under Alabama law, as "conduct which is carried on with a reckless or conscious disregard of the rights or safety of others." 1975 Ala. Code § 6-11-20(b)(3). In order to establish wantonness, the plaintiff must "`prove that the defendant caused harm by the conscious doing of some act or the conscious omission of some duty, while knowing of the existing conditions and being conscious that, from doing or omitting to do an act, injury would likely or probably result.'" Kmart Corp. v. Peak, 757 So.2d 1138, 1144 (Ala. 1999) (quoting Alfa Mutual Ins. Co. v. Roush, 723 So.2d 1250, 1258 (Ala. 1998) (Cook, J., concurring specially)). See also Richards v. Michelin Tire Corp., 21 F.3d 1048, 1057 (11th Cir. 1994) ("To be guilty of wantonness, the plaintiff must show that a defendant, with reckless indifference to the consequences, consciously and intentionally did some wrongful act or omitted some known duty with knowledge of the existing conditions and that this act or omission would likely or probably lead to the plaintiff's injury."). In contrast to negligence — where a jury may find guilt on the basis of a defendant's awareness that his actions or failure to act would entail more risks than otherwise — a party guilty of wantonness must know that his act or failure to act makes an injury "likely" or "probable." Id. See also Salter v. Westra, 904 F.2d 1517, 1526-27 (11th Cir. 1990) ("A jury may not find wantonness simply on the basis of a defendant's awareness that his actions [or failure to act] would entail more risks than not taking the action in question. . . . To find otherwise would erase the distinction between negligence and wantonness. . . .").

Ryles has presented no evidence that Wal-Mart knew of the box's position on the aisle floor and consciously failed to act while aware that injury would likely or probably result. On the contrary, Ryles stated during her deposition that she did not know how the box had come to be on the floor. Furthermore, there is no evidence in the record to suggest that Wal-Mart knew about boxes generally littering aisle floors. While it is "difficult to define the exact point at which the probability of harm is sufficient to support a jury's finding of wantonness, courts . . . must attempt to discern that line in light of the fact that wantonness is distinct from negligence."Richards, 21 F.3d at 1057. Absent any evidence in the record that Wal-Mart knew of the existing conditions that led to Ryles's injury, the court finds summary judgment appropriate with respect to the wantonness claim.

IV. CONCLUSION

(1) Defendant Wal-Mart Stores, East L.P.'s motion for summary judgment (doc. no. 8) is granted with respect to plaintiff Annie Ryles's wantonness claim.

(2) Said motion is denied in all other respects.