Opinion
Civ. No. 02-4343 (RHK/RLE)
December 18, 2003
Paul J. Phelps, Sawicki Phelps, P.A., Inver Grove Heights, Minnesota, for Plaintiff
John H. Guthmann and Kathleen M. Daly, Hansen, Dordell, Bradt, Odlaug Bradt, P.L.L.P, St. Paul, Minnesota, for Defendant
MEMORANDUM OPINION AND ORDER
Introduction
This matter comes before the Court on Defendant J.C. Penney Corporation's ("J.C. Penney") Motion for Summary Judgment. Plaintiff Lois Grant was walking in the aisle of a Brainerd, Minnesota, J.C. Penney department store when she allegedly stubbed her foot on an advertising sticker affixed to the store's floor, which stopped her forward motion and caused her to fall. Grant filed suit in state court alleging that J.C. Penney negligently maintained the premises, failed to inspect and failed to warn of a dangerous condition. J.C. Penney removed the action to this court, and now moves for summary judgment on the ground that Grant has not produced any non-speculative facts of a dangerous condition. For the reasons set forth below, the Court will grant J.C. Penney's Motion.
Defendant's proper name is J.C. Penny Company, Inc. (Answer ¶ II.)
Background
The Court states the background facts in the light most favorable to Grant. Fed.R.Civ.P. 56.
On September 18, 2001, at approximately 11:30 a.m., Grant drove to the Brainerd, Minnesota, J.C. Penney department store to do some shopping. (Grant Dep. Tr. at 10-11.) Grant entered the store through the front entrance, took a left and walked down the left aisle past the women's and junior's departments, toward the catalog department located at the back of the store. (Id. at 13, 23-24, Ex. 1.) Immediately after taking a right at the corner of the women's lingerie and children's departments, Grant fell and suffered injuries to her right cheekbone, eye, arm and shoulder. (Id. at 14-15, 22-26.) She alleges that there were advertising stickers on the aisle floor that caused her to fall. (Id. at 14.)
J.C. Penney places advertising stickers on its store's floors to promote sales. (Falconer Dep. Tr. at 6.) Amy Falconer, the Visual Merchandising Supervisor, is responsible for the Brainerd, Minnesota, store's advertising stickers. (Id. at 1, 5-6.) In the past, Falconer has placed circular stickers measuring two feet in diameter on the store's floors to advertise a back-to-school sale. (See Id. at 6, 9, 11.) The stickers are made of a thick, sturdy material and are affixed to the floor by peeling off the sticker's backing, which exposes the adhesive, and placing it down flat. (Id. at 10, 13.) They are then waxed over by maintenance personnel along with the rest of the floor. (Id. at 22, 24-25.) They are difficult to dislodge and Falconer uses a screwdriver to remove them. (Id. at 9.) Falconer inspects the stickers every day and has never seen a sticker peel off, is not aware of anyone falling because of the stickers and found nothing unsafe about walking on them. (Id. at 20, 25.)
After falling, Grant was assisted to a chair in the catalog department to recover. (Grant Dep. Tr. at 24, 27-28.) Dwight Lindgren, the store's functional office manager, came to Grant with an accident report form. (Id. at 27; Lindgren Dep. Tr. at 1, 8, 13, Ex. 1.) Grant told Lindgren that she fell, but did not tell him what caused her to fall; in fact, she does not recall telling anyone at the store that she fell because of an advertising sticker. (Grant Dep. Tr. at 31;see Lindgren Dep. Tr. 12.) Lindgren inspected the area where Grant fell and saw no stickers and noted none on the accident report. (Lindgren Dep. Tr. 11, 13, 15, 17, Ex. 1.) After recuperating in the catalog department, Grant finished her shopping and left the store the way she entered. (Grant Dep. Tr. at 31.)
Upon leaving the store, Grant drove herself to the Brainerd Medical Center and told a physician that she had fallen, but did not tell him what caused her to fall. (Grant Dep. Tr. at 34-35.)
Ms. Falconer also testified that no stickers were located in the aisle where Grant fell. (Falconer Dep. Tr. at 6-8, 18-19, Ex. 1.) Rather, the stickers laid out on that day were located in the area near the shoe department, some two aisles away from the place of the accident. (Id. at 11, 18-19.)
On her way out of the store, Grant walked in the vicinity of the alleged stickers. (Id.) When asked at her deposition whether she saw anything dangerous about the stickers, Grant replied, "I just knew that that's what it was that caused me to fall." (Id. at 32.) She attempts to explain:
Q. What was dangerous about them?
A. Because they — they had — must have had some kind of a rough finish on them. When I stepped on them, my shoes just — (indicating).
Q. Stopped?
A. Yeah.
. . .
Q. Did you see anything that looked dangerous?
A. I couldn't say. I didn't get down on my hands and knees and look at them, but I know that it — that's what caused me, with my shoe —
Q. And I'm not asking you about that. I'm asking you about what you saw when you left.
A. I seen the stickers, and they are the only thing that could have caused me to fall, and —
Q. That's not what I'm asking you.
A. I know what you're trying to ask me. You're saying, are they — did they have anything sticking up? I couldn't say whether they had something; because I didn't get down and inspect them.
. . .
Q. . . . When you walked around the stickers, you didn't see anything sticking up, correct?
A. I didn't look for anything sticking up. I wanted to get to the doctor.
Q. So at no time while you were there in the store that day did you ever see anything sticking up from those stickers, correct?
A. I couldn't swear to it. I don't know.
Q. Okay, that's fine. Other than the printing on the stickers themselves, was there anything unusual about the surface of the stickers?
A. They must have had — I don't know. I can't say.
(Id. at 31-34.) Grant offers no other testimony, expert or lay, describing the stickers or assessing their dangerousness.
Grant sued J.C. Penney, alleging negligent maintenance, failure to inspect and failure to warn of a dangerous condition. (Compl. ¶ III.) Grant's theory of recovery is that J.C. Penney created a dangerous condition by placing the advertising stickers on the aisle floor because the stickers were thick and their surfaces were rougher than the tile flooring surrounding it. (PL's Mem. in Opp'n at 3.) Grant admits that she did not "slip" on the stickers and does not know whether anything was sticking up from them that might have caused her to trip. (Grant Dep. Tr. at 15, 34.) Rather, she claims that she stubbed her foot when the "grippers" on her Red Wing walking shoes adhered to the sticker. (Id. at 14, 18.) This action "stopped [her] dead" and caused her to fall. (Id. at 15.) Grant does not recall, however, which of the eight stickers caused her to fall, or where on the sticker, such as the edge or middle, she made contact. (Id. at 15, 17.) Nevertheless, she alleges that it was the difference in the sticker's surface, as compared to the surrounding tile, that caused her to fall. (PL's Mem. in Opp'n at 3.)
Standard of Review
A party is entitled to summary judgment if the evidence demonstrates that there is no genuine issue as to any material fact and that the party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In viewing the evidence, the Court makes its inferences in the light most favorable to the nonmoving party. Enterprise Bank v. Magna Bank, 92 F.3d 743, 747 (8th Cir. 1996): see also Adkinson v. G.D. Searle Co., 971 F.2d 132, 134 (8th Cir. 1992). The burden is on the moving party, Enterprise Bank. 92 F.3d at 747;Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986), and summary judgment should be granted only where the evidence is such that no reasonable jury could return a verdict for the nonmoving party.Anderson v. Liberty Lobby, 477 U.S. 242, 250 (1986).
The nonmoving party, however, may not rest upon the allegations or denials of its pleadings. Rather, the nonmovant must establish the existence of specific facts that create a genuine issue for trial. Neither mere allegations nor denials are sufficient. Id. In essence, the court performs a threshold inquiry to determine whether there is need for trial. Id. To survive a motion for summary judgment, the nonmoving party must "substantiate [her] allegations with sufficient probative evidence [that] would permit a finding in [her] favor based on more than mere speculation, conjecture, or fantasy."Putman v. Unity Health Sys., 348 F.3d 732, 734 (8th Cir. 2003) (citation and internal quotations omitted).
Analysis
J.C. Penney has moved for summary judgment on Grant's negligence claim. The substantive law of negligence is well-established. A plaintiff in a negligence action must prove: (1) the existence of a duty of care, (2) a breach of that duty, (3) an injury, and (4) the breach of the duty being the proximate cause of the injury. Gradjelick v. Hance, 646 N.W.2d 225, 230 (Minn. 2002).
A store owner is not an insurer of the safety of business invitees, but does owe them a duty to keep and maintain the premises in a reasonably safe condition. Wolvert v. Gustafson, 146 N.W.2d 172, 173 (Minn. 1966): see Norman v. Tradehome Shoe Stores, Inc., 132 N.W.2d 745, 748 (Minn. 1965). A store owner, however, "does not incur liability from the mere fact that one falls and is injured in [its] place of business." Lyon v. Dr. Scholl's Foot Comfort Shops, Inc., 87 N.W.2d 651, 655-56 (Minn. 1958). Rather, a plaintiff "ha[s] the burden of proving either that defendant caused the dangerous condition or that it knew, or should have known, that the condition existed."Messner v. Red Owl Stores, Inc., 57 N.W.2d 659, 662 (Minn. 1953). Speculation as to the cause or duration of the dangerous condition is insufficient evidence of negligence to withstand summary judgment.Rinn v. Minnesota State Agric. Soc'y, 611 N.W.2d 361, 365 (Minn.Ct.App. 2000); see Bob Useldinger Sons. Inc. v. Hangsleben, 505 N.W.2d 323, 328 (Minn. 1993); Messner, 57 N.W.2d at 661-62.
J.C. Penney has moved for summary judgment on the ground that Grant has not produced any non-speculative evidence of a dangerous condition at its Brainerd store. (Def.'s Mem. in Supp. at 9; Def.'s Reply Mem. in Supp. at 1-3.) Grant responds that J.C. Penney created a dangerous condition by placing the thick, rough stickers on the floor, which resulted in a "difference in texture" that caused Grant to fall. (PL's Mem. in Opp'n at 3.)
Grant has offered no competent, non-speculative evidence that J.C. Penney either created, or had notice of, a dangerous condition with respect to the advertising stickers. Grant admits that she did not slip and does not know if anything was sticking out that caused her to trip. (Grant Dep. Tr. at 15, 34.) She also admits that she does not recall which sticker caused her to fall, or where on the stickers she made contact. (Id. at 15, 16.) Although Grant alleges that she fell because the stickers' surface was rougher than the surrounding tile (PL's Mem. in Opp'n at 3), when asked if there was anything unusual about the surface of the stickers, other than the printing on them, she surmises, "They must have had — I don't know. I can't say." (Id. at 34.) When asked if she saw anything that looked dangerovis, she concedes, "I couldn't say. I didn't get down on my hands and knees and look at them. . . ." (Id. at 33.) Considering that Grant did not inspect the stickers, she can only speculate that they "must have had some kind of rough finish on them," which caused her to fall. (Id. at 32.) Other than Grant's speculation, there is no evidence before the Court establishing the composition or texture of the advertising stickers' surfaces.
Grant is required, however, to offer non-speculative and non-conjectural evidence that creates a genuine issue of material fact.See Putman, 348 F.3d at 734. Under Minnesota law
[i]t is not incumbent upon the defendant to show how the accident happened. If the cause of its happening is not established, the defendant is entitled to prevail. The proof must establish causal connection beyond the point of conjecture. It must show more than a possibility of injury from defendant's acts. It must be more than merely consistent with plaintiff's theory of how the accident occurred.Elias v. City of St. Paul, 350 N.W.2d 442, 444 (Minn.Ct.App. 1984) (en banc) (quoting Kludzinski v. Great Northern Ry. Co., 153 N.W. 529, 529 (1915)); see Bob Useldinger, 505 N.W.2d at 328 ("Mere speculation, without some concrete evidence, is not enough to avoid summary judgment"). It is apparent from Grant's deposition testimony that she can only speculate as to what caused her to fall. This is insufficient to sustain a negligence claim. See Elias, 350 N.W.2d at 444; see also DeCourcy v. Trustees of Westminster Presbyterian Church, Inc., 134 N.W.2d 326, 328 (Minn. 1965) ("A mere possibility of . . . causation is not enough, as such a conclusion amounts to mere speculation or conjecture.") Because Grant has not substantiated her allegations with sufficient probative evidence that would permit a finding in her favor, she cannot withstand the pending motion for summary judgment. Putman, 348 F.3d at 734.
Conclusion
Based on the foregoing, and all of the files, records, and proceedings herein, IT IS ORDERED that the Defendant J.C. Penney Company, Inc.'s Motion for Summary Judgment (Doc. No. 8) is GRANTED. Plaintiff Lois Grant's Complaint (Doc. No. 1) is DISMISSED WITH PREJUDICE.