IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

DUANE ALSIP as Administrator 

and Personal Representative of 

the Estate of Emma Alsip,

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Plaintiff,

vs. CIVIL ACTION NO. 14-476-CG-N

WAL-MART STORES EAST, LP 

and SOVEREIGN COMMERCIAL 

MAINTENANCE COMPANY, 

LLC.,

Defendants.

MEMORANDUM OPINION AND ORDER

This matter is before the Court on the motion of Wal-Mart Stores East, L.P. 

(“Wal-Mart”) for summary judgment (Doc. 67), Plaintiff’s opposition (Doc. 83), WalMart’s reply (Doc. 87) and Wal-Mart’s objection to Plaintiff’s opposition (Doc. 89). 

For the reasons explained below, the Court finds that Wal-Mart’s motion should be 

granted.

FACTS

This case arises from a slip and fall that occurred on Wal-Mart’s premises on 

or about April 23, 2013. On that date, Emma Alsip, who was 83 years old, slipped 

during rainy conditions on the yellow painted crosswalk near the entrance to a WalMart Super Store in Foley, Alabama. (Doc. 44, ¶¶ 12-14). Plaintiff asserts two 

counts against Wal-Mart: (1) that Emma Alsip suffered injuries and damages 

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proximately caused by Wal-Mart negligently and/or wantonly maintaining the 

painted crosswalks in front of its store so that it was not reasonably safe for 

business invitees (Doc. 44, ¶¶ 15-18); and (2) that Emma Alsip was injured as a 

result of Wal-Mart’s failure to warn her of the dangerous condition (Doc. 44, ¶¶ 19-

22).1 

On the date of the accident, Emma Alsip’s daughter, Pam Marcum, drove to 

the Wal-Mart parking lot and Emma Alsip and a friend, Barbara Drane, were 

passengers in the car. (Doc. 68-1, pp. 7-8; Doc. 68-2, pp. 9-10). Ms. Marcum pulled 

up proximate the front of the store to let Emma Alsip and Ms. Drane out. (Doc. 68-1, 

pp. 9-10). It was raining at the time. (Doc. 68-1, p. 10). The rain was “moderate.” 

(Doc. 68-2, p. 11). Ms. Drane got out of the front passenger seat and walked 

towards the doors. (Doc. 68-1, p. 12; Doc. 68-2, p. 11). Ms. Alsip got out next, closed 

the door to the car, turned around and a few minutes later her feet slipped right out 

from under her on the painted surface and she fell on her right side. (Doc. 68-1, pp. 

12-13, 19-20). Ms. Drane started hitting on the car window and motioned for Ms. 

Marcum to get out and then Ms. Marcum got out of the car and ran around to find 

Ms. Alsip lying on the ground. (Doc. 68-2, pp. 12-14). Ms. Marcum reports that she 

did not have any problem with her footing when she ran around the car. (Doc. 68-2, 

 

1 Plaintiff asserts a third Count against Defendant Sovereign Commercial Maintenance 

Company, LLC. for negligently and wantonly failing “to apply a proper paint mixture because it 

did not include an abrasive additive to make the paint slip resistant when wet.” (Doc. 44, ¶¶ 23-

27).

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pp. 15-16). Ms. Marcum got an umbrella out of the car and a man came up and 

helped Ms. Alsip up and get back in the vehicle. (Doc. 68-2, pp. 13-24; Doc. 68-4, p. 

7). A Wal-Mart employee came out with some paperwork to document the incident. 

(Doc. 68-2, pp. 14, 17). Where Ms. Alsip fell the surface was wet, but there was no 

puddle. (Doc. 68-2, pp. 20-21). According to Ms. Drane the painted lines looked 

bright yellow and slick, like they had just been freshly painted, but she did not feel 

the painted lines and did not suggest that she had any problem walking on the 

crosswalk. (Doc. 68-4, p. 8).

The parking lot in question had been restriped on January 19, 2010, by 

Defendant Sovereign Commercial Maintenance Company, LLC (“Sovereign”). (Doc. 

68-10). Sovereign used a Sherwin-Williams traffic paint to restripe the parking lot. 

(Doc. 68-11, p. 17). The paint was not supplied by Wal-Mart, it was purchased by 

Sovereign. (Doc. 68-11, p. 5). It was industry standard to use traffic paint. (Doc. 68-

11, p. 7). Sherwin-Williams traffic paint does not contain an abrasive material in it, 

but Sovereign would add an abrasive if they were instructed to. (Doc. 68-11, pp. 18-

19). In 2010, when Sovereign restriped the crosswalk, Sovereign knew that they 

were to add sand to the crosswalk areas and it was their practice to do so when 

restriping crosswalks for Wal-Mart. (Doc. 68-11, pp. 19-20, 22-23). Sovereign 

reportedly used trained and experienced personnel in applying the paint and did 

the striping in accordance with and consistent with the manufacturer’s 

recommendations. (Doc. 68-11, p. 21). Wal-Mart does not have a written policy or 

specification specifically requiring the addition of abrasive material to the paint 

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used in its parking lots, instead its written policies require that exterior walkways 

be slip resistant. (Doc. 68-9, pp. 17, 22; Doc. 84-7, pp. 17-18). Wal-Mart is aware 

that there was another slip and fall in the parking lot. In 2011, there was an 

incident where a lady slipped and fell in Wal-Mart’s parking lot when it was 

raining; however, the incident did not occur in the crosswalk, but in a parking space 

in the parking lot. (Doc. 84-7, pp. 25-26; Doc. 84-15). Additionally there is no 

indication as to how heavily it was raining, what the lady was doing when she fell, 

or that other circumstances were similar to Ms. Alsip’s fall.2

Wal-Mart hired Traci Campbell of BEC Consulting, LLC (“BEC”) to 

investigate the area where Ms. Alsip fell. BEC performed slip index tests on the 

area on March 16, 2015 and June 29, 2015. (Doc. 68-17, ¶¶ 6, 7). Ms. Campbell also 

inspected the painted stripes of the crosswalk where Ms. Alsip fell for the presence 

of aggregate. (Doc. 68-17, ¶ 7). Campbell stated that abrasive appeared to be 

present on the painted striped lines due to the feel of the painted lines as well as 

visual pockmarks in the paint where abrasive had been at one time and may have 

worn off. (Doc. 68-17, ¶ 7). A traffic marking surface analysis was also conducted on 

the area on June 23, 2015. (Doc. 68-17, ¶ 8). Campbell concluded that the painted 

surface had sufficient slip resistance, even under wet and rainy conditions. (Doc. 68-

 

2 Wal-Mart objected to this evidence in its objection to Plaintiff’s opposition. (Doc. 89). WalMart argues that this evidence of a prior accident is irrelevant and inadmissible. Upon review of 

the evidence, the Court agrees that Plaintiff has not shown that the prior accident is substantially 

similar to Ms. Alsip’s incident. Therefore, the evidence will not be considered for purposes of 

this summary judgment.

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17, ¶ 9d). Campbell found that the crosswalk had a slip resistant surface under 

foreseeable environmental conditions, that the surface meets all industry slip 

resistant standards and that the crosswalk was not in an unreasonably dangerous 

condition at the time of Ms. Alsip’s fall. (Doc. 68-17, ¶ 9).

DISCUSSION

A. Summary Judgment Standard

Federal Rule of Civil Procedure 56(a) provides that summary judgment shall 

be granted: “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 trial court’s 

function is not “to weigh the evidence and determine the truth of the matter but to 

determine whether there is a genuine issue for trial.” Anderson v. Liberty Lobby, 

Inc., 477 U.S. 242, 249 (1986). “The mere existence of some evidence to support the 

non-moving party is not sufficient for denial of summary judgment; there must be 

‘sufficient evidence favoring the nonmoving party for a jury to return a verdict for 

that party.’” Bailey v. Allgas, Inc., 284 F.3d 1237, 1243 (11th Cir. 2002) (quoting 

Anderson, 477 U.S. at 249). "If the evidence is merely colorable, or is not 

significantly probative, summary judgment may be granted." Anderson, at 249-250. 

(internal citations omitted).

The basic issue before the Court on a motion for summary judgment is 

“whether the evidence presents a sufficient disagreement to require submission to a 

jury or whether it is so one-sided that one party must prevail as a matter of law.” 

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See Anderson, 477 U.S. at 251-252. The moving party bears the burden of proving 

that no genuine issue of material fact exists. O'Ferrell v. United States, 253 F.3d 

1257, 1265 (11th Cir. 2001). In evaluating the argument of the moving party, the 

court must view all evidence in the light most favorable to the non-moving party, 

and resolve all reasonable doubts about the facts in its favor. Burton v. City of Belle 

Glade, 178 F.3d 1175, 1187 (11th Cir. 1999). “If reasonable minds could differ on 

the inferences arising from undisputed facts, then a court should deny summary 

judgment.” Miranda v. B&B Cash Grocery Store, Inc., 975 F.2d 1518, 1534 (11th 

Cir. 1992) (citing Mercantile Bank & Trust v. Fidelity & Deposit Co., 750 F.2d 838, 

841 (11th Cir. 1985)).

Once the movant satisfies his initial burden under Rule 56(c), the non-moving 

party "must make a sufficient showing to establish the existence of each essential 

element to that party's case, and on which that party will bear the burden of proof 

at trial." Howard v. BP Oil Company, 32 F.3d 520, 524 (11th Cir. 1994)(citing 

Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). Otherwise stated, the nonmovant must “demonstrate that there is indeed a material issue of fact that 

precludes summary judgment.” See Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 

(11th Cir. 1991). The non-moving party “may not rely merely on allegations or 

denials in its own pleading; rather, its response .... must be by affidavits or as 

otherwise provided in this rule be set out specific facts showing a genuine issue for 

trial.” Vega v. Invsco Group, Ltd., 2011 WL 2533755, *2 (11th Cir. 2011). “A mere 

‘scintilla’ of evidence supporting the [non-moving] party’s position will not suffice; 

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there must be enough of a showing that the jury could reasonably find for that 

party.” Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citation omitted). 

“[T]he nonmoving party may avail itself of all facts and justifiable inferences in the 

record taken as a whole.” Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 998 (11th 

Cir. 1992). “Where the record taken as a whole could not lead a rational trier of fact 

to find for the non-moving party, there is no genuine issue for trial.” Matsushita 

Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 at 587 (1986) (internal 

quotation and citation omitted).

B. Plaintiff’s Claims

Plaintiff asserts Wal-Mart is liable for negligence, wantonness, and failure to 

warn with regard to Ms. Alsip’s slip and fall on its premises. In a premises-liability 

case, a plaintiff must prove the same elements of negligence as in any tort case: 

duty, breach of duty, causation, and damages. Sessions v. Nonnenmann, 842 So. 2d 

649, 651 (Ala. 2002). Under Alabama law, “[a] store patron is generally considered 

a business invitee for premises-liability purposes.” Blalock v. Wal-Mart Stores E., 

LP, 2007 WL 1412445, at *1 (M.D. Ala. May 11, 2007). The duty owed to an invitee 

is “to exercise reasonable care to provide and maintain reasonable safe premises for 

the use of [ ] customers.” Denmark v. Mercantile Stores Co., 844 So. 2d 1189, 1192 

(Ala. 2002) (quoting Maddox v. Kmart Corp., 565 So. 2d 14, 16 (Ala. 1990)). 

However, “[t]his does not require a storekeeper to keep a floor completely dry during 

rainstorms.” Katrensky v. United States, 732 F. Supp. 2d 1194, 1198 (M.D. Ala. 

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2010) (quoting McDonald's Corp. v. Grissom, 402 So.2d 953, 955 (Ala.1981)). Under 

Alabama law, “a landowner is not the insurer of the safety of his invitees, [so] the 

owner's duty is negated where the invitee or customer knew or should have known 

about the hazard that purportedly caused his injury.” Blalock, 2007 WL 1412445, at 

*1 (citing Ex parte Mountain Top Indoor Flea Mkt., 699 So. 2d 158, 161 (Ala. 1997); 

Jones Food Co. v. Shipman, 981 So. 2d 355, 361-63 (Ala. 2006)).

[A]lthough a storekeeper owes a customer a duty to exercise reasonable 

care to maintain the premises in a safe condition, where the foreign 

substance is rainwater tracked in by customers and in the absence of 

unusual accumulation, due care does not require that a storekeeper 

keep a floor completely dry during a rainstorm or to hold him 

responsible for every slick place due to tracked-in rainwater would 

impose an unreasonable standard of care, and would, in effect, make 

him an insurer of the customer's safety. Of course, each case must be 

examined in light of its particular circumstances, and where there are 

unusual accumulations of rain water or other circumstances, due care 

may require that the storekeeper take affirmative measures such as 

mopping, applying anti-slip compounds, or posting warnings.

Katrensky, 732 F. Supp.2d at 1199 (quoting Terrell v. Warehouse Groceries, 364 

So.2d 675, 677 (Ala.1978). “The Alabama Supreme Court has repeatedly held that a 

reasonable person knows, or should know, that rain water causes surfaces to 

become slick, and thus, premise owners are generally not liable for slippery 

conditions caused by rain water.” Id. (citations omitted). On a rainy day, entrance 

areas are expected to be wet. See Mendez v. Walgreen Co., 2015 WL 3767218, at *5 

(N.D. Ala. June 17, 2015) (noting the impact of the location of rainwater) (citing 

Boyd v. Wal-Mart Stores, Inc., 710 So.2d 1258 (Ala. Civ. App. 1997) and Katrensky, 

732 F.Supp.2dd at 1200). “The burden rests upon the plaintiff to show that the 

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injury was proximately caused by the negligence of the storekeeper or one of its 

servants or employees.” St. v. Drury Inns, Inc., 2009 WL 4041901, at *4 (S.D. Ala. 

Nov. 18, 2009) (citations omitted). Here, the Court finds that Plaintiff has not met 

that burden.

Plaintiff cites cases where there was sufficient evidence from which a jury 

could find that a defect existed in the condition of the premises, arguing that such 

cases are analogous to Wal-Mart’s failure to add an abrasive material to the paint 

in the instant case. However, the evidence in this case indicates that an abrasive 

was added to the paint that was applied to the crosswalk. Even if there was enough 

evidence by which a jury could find that there was no abrasive applied, or that the 

abrasive had worn off by the time of the accident, there is no evidence that the 

surface was unreasonably slippery. The area was tested, albeit two years after the 

incident, and found to meet industry standards for slip-resistance. The rain made 

the area more slippery than when dry, but that is a hazard that was open and 

known to Ms. Alsip. Ms. Alsip testified that it had been raining and because she 

was outside, she therefore, had to have been aware of the wet condition caused by 

the rain. It is the Plaintiffs' burden to show that an “unusual accumulation” of 

rainwater or other circumstances existed that made the area unreasonably unsafe. 

There is simply no evidence, other than the fact that Ms. Alsip fell, that the area 

was unreasonably safe. Ms. Drane testified that the stripes looked newly painted 

and slick but no one said the lines felt slick, nor did anyone have trouble navigating 

the crosswalk when rushing to Ms. Alsip’s aid under the same conditions. There is 

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no evidence that any other people slipped in the same area since the crosswalk was 

restriped in 2010 and there is no evidence Wal-Mart was negligent in hiring and 

directing Sovereign to restripe the crosswalk. While Wal-Mart did not have a 

specific written policy requiring that an abrasive be used, Wal-Mart’s written policy 

required that it be slip-resistant and the evidence indicates that Sovereign had been 

directed to use an abrasive when painting crosswalks at any Wal-Mart stores. The 

record is also devoid of any evidence Wal-Mart knew or should have known that the 

crosswalk area was unsafe. Plaintiff has not shown that Wal-Mart was negligent in 

any way. There is no evidence by which a jury could find that Ms. Alsip’s fall was 

anything other than the result of the open and obvious condition that it was raining 

when she got out of the car. 

There is also no evidence that Wal-Mart acted wantonly. The Plaintiff has 

not presented the Court with any evidence about the state of mind of any Wal-Mart 

employee or any argument suggesting that Wal-Mart’s failure to discover, remove or 

do something about the rain water or the condition of the crosswalk is evidence of 

wanton conduct. Evidence that an accident occurred, without evidence that the 

Defendant or its agents were conscious of Ms. Alsip’s injury or the potential for 

injury, is insufficient to prove wantonness under Alabama law. Additionally, since 

Plaintiff has not shown that the crosswalk was unreasonably dangerous, there can 

be no liability for failure to warn.

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CONCLUSION

For the reasons stated above, the motion of Wal-Mart Stores East, L.P. WalMart Stores East, L.P. for summary judgment (Doc. 67), is GRANTED.

DONE and ORDERED this 16th day of November, 2015.

/s/ Callie V. S. Granade 

UNITED STATES DISTRICT JUDGE

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