United States Court of Appeals

For the Eighth Circuit

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No. 12-1364

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Estella M. Caradine

lllllllllllllllllllll Plaintiff - Appellant

v.

Fred’s Stores of Tennessee, Inc.

lllllllllllllllllllll Defendant - Appellee

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 Appeal from United States District Court 

for the Eastern District of Arkansas - Little Rock

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 Submitted: October 31, 2012

Filed: January 9, 2013

[Unpublished]

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Before WOLLMAN, MELLOY, and SHEPHERD, Circuit Judges.

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PER CURIAM.

In this diversity action, Estella Caradine appeals the district court’s grant of

summary judgment in favor of defendant Fred’s Stores of Tennessee, Inc. (FST). 

After careful consideration, see Estate of Morgan v. Cook, 686 F.3d 494, 496 (8th

Cir. 2012) (de novo review), we reverse and remand for further proceedings.
The only evidence presented to the district court was Caradine’s deposition

testimony, to the following effect. In March 2010, Caradine arrived at a Fred’s Store

in North Little Rock, Arkansas, to help a friend shop. When walking down an aisle,

she spotted two boxes of Pine-Sol on the ground in front of her, and a small amount

of yellow liquid to the side of one box. To avoid the spill, she walked between the

two boxes, as she did not see any liquid on that portion of the floor. She then slipped

and fell on her back, resulting in injuries. No signs warned her about the spill. 

Caradine testified that although she did not see any liquid where she walked either

before or after her fall, she believed she slipped in Pine-Sol because she smelled like

Pine-Sol after falling, and the manner in which she fell--landing on her back--

indicated that she slipped on a substance.

We conclude that the undisputed evidence presented questions of material fact

precluding summary judgment. First, based on Caradine’s testimony, a reasonable

factfinder could find that Caradine slipped in Pine-Sol residue, and that the residue

created an unsafe condition. See Wal-Mart Stores, Inc. v. Regions Bank Trust Dep’t,

69 S.W.3d 20, 23 (Ark. 2002) (store owner “has a duty to exercise ordinary care to

maintain the premises in a reasonably safe condition for the benefit of invitees”);

Kelley v. Nat’l Union Fire Ins. Co., 937 S.W.2d 660, 662 (Ark. 1997) (in slip-and-fall

case, holding that question offact existed asto whether foreign substance was present

on floor, even though plaintiff did not see what caused her fall, based in part on dust

she saw on bystander’s hand who helped her up). 

Second, a factfinder could infer that FST either knew about the spill, or that the

spill had remained on the floor long enough for FST to know it was there. FST

presented no contrary evidence below, and excerpts ofCaradine’s deposition that FST

includes on appeal (but omitted below) reflect her testimony that after she fell and

was helped to the front of the store, a cashier who was told what happened said,

“‘well, I had called somebody to clean up thatspill before you even got to the store’”;

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and her testimony stating, “There wasn’t a wet floor sign back there, nowhere. If I

had seen the wet floor sign, then I would have went another way and I wouldn’t have

never fell.” See Parker v. Perry, 131 S.W.3d 338, 343 (Ark. 2003) (when reviewing

grant of summary judgment, court decides only if evidence movant presented left

question of material fact unanswered; if movant did not offer proof on controverted

issue, summary judgment is not appropriate, even if nonmovant fails to present

countervailing evidence);Regions Bank Trust, 69 S.W.3d at 23-24 (reciting elements

of slip-and-fall cases under Arkansas law); see also Hintz v. JPMorgan Chase Bank,

686 F.3d 505, 508-09 (8th Cir. 2012) (appellate court may enlarge record when

interests of justice demand it; court considered transcript first produced on appeal

where neither party disputed its validity and both their briefs relied on it).

Finally, we conclude the obvious-danger rule did not eliminate FST’s duty to

Caradine. See Young v. Paxton, 873 S.W.2d 546, 550 (Ark. 1994) (obvious-danger

rule states that land owner’s duty to invitee is usually satisfied if danger is known or

obvious to invitee). A reasonable factfinder could infer from Caradine’s testimony

that she did not know of or appreciate the danger of walking between the Pine-Sol

boxes--and around the portion of the spill she knew about--until after her fall. See

Van DeVeer v. RTJ, Inc., 101 S.W.3d 881, 887 (Ark. Ct. App. 2003) (whether

condition was open and obvious was a question of fact for the jury that cannot be

decided on summary judgment); Coleman v. Monson, 522 N.W.2d 91, 93-94 (Iowa

Ct. App. 1994) (where plaintiff knew floors had water on them from cleaning but did

not know exactly where, and she proceeded down aisle she perceived as clear of

water, but slipped and fell on water anyway, court determined enough evidence

existed to infer that dangerous condition was not known or obvious).

Therefore, we reverse the district court’s grant of summary judgment and

remand for further proceedings.

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