IN THE UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF ALABAMA

NORTHERN DIVISION

MICHAEL CHAPPELL and )

DARLENE CHAPPELL, )

)

Plaintiffs, )

)

v. ) CIVIL ACTION NO.

) 05-00347-BH-M

WAL-MART STORES, INC., )

)

Defendant. )

FINDINGS OF FACT; CONCLUSIONS OF LAW;

AND ORDER

This action is before the Court on defendant’s motion (Doc. 12) for summary

judgment. Upon consideration of the motion, plaintiffs’ response in opposition thereto

(Doc. 16), defendant’s reply (Doc. 18), and all other pertinent portions of the record, the

Court concludes that defendant’s motion is due to be granted.

FINDINGS OF FACT

Upon consideration of all the evidence of record, the Court finds that the following

facts are either undisputed or uncontradicted by the plaintiffs:

1. The defendant, Wal-Mart Stores East, LP (“Wal-Mart”), operates a stores in

Dallas County, Alabama. (Benson Aff. at ¶ 2).

2. On February 23, 2003, the plaintiffs, Michael and Darlene Chappell, were

shopping for groceries in Wal-Mart at approximately 12:30 or 1:00 p.m. (M. Chappell

Dep. at 33; D. Chappell Dep. at 71).

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3. Mr. Chappell went to the frozen food section to retrieve some forgotten

frozen garlic toast before plaintiffs checked out. (Opposition Brief at 1; M. Chappell

Dep. at 33; D. Chappell Dep. at 71). Mr. Chappell slipped and fell. (M. Chappell Dep. at

34-36; Opposition Brief at 1).

4. There were no witnesses to the fall. (M. Chappell Dep. at 39; D. Chappell

Dep. at 73; Benson Aff. at ¶ 5). Mrs. Chappell found her husband when he was trying to

get back up from the fall and went to get help. (M. Chappell Dep. at 39-40; D. Chappell

Dep. at 71-72; Opposition Brief at 1). Kenneth Benson was the Assistant Manager at

Wal-Mart when Mr. Chappell fell and was the first Wal-Mart employee on the scene

following the fall. (Benson Aff. at ¶¶ 2 and 5; D. Chappell Dep. at 72). 

5. Mr. Chappell does not know on what he fell and only knows what he was

told. (M. Chappell Dep. at 34, 38, 44-45). Kenneth Benson and Mrs. Chappell went to

the area where Mr. Chappell had fallen and found what has been described as an old

lavender or purple squashed flower or leafy item, although Mrs. Chappell did not know

what it actually was. (D. Chappell Dep. at 72-73; Benson Aff. at ¶ 5). It was the only

thing in the area upon which Mr. Chappell could have slipped. (D. Chappell Dep. at 75).

6. Plaintiffs do not dispute that there was nothing preventing Mr. Chappell

from seeing the object upon which he slipped and that he would have seen it had he been

looking down. ((M. Chappell Dep. at 38; D. Chappell Dep. at 77-78).

7. Plaintiffs have proffered no evidence to contradict defendant’s evidence

that, on the day Mr. Chappell fell, Wal-Mart adhered to its procedures which required the

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Associates working in the frozen food area where the incident occurred to inspect the area

each hour and to maintain a clean and safe working area. (Benson Aff. at ¶ 3). Nor has

any evidence been proffered to dispute the fact that Mr. Benson had been in the area

minutes before Mr. Chappell fell and had not noticed anything on the floor. (Benson Aff.

at ¶ 4). Plaintiffs acknowledge that “[c]ustomers go in and shop, and logically, every

item in the store could potentially end up on the other end of the store via a customer’s

cart.” (Opposition Brief at 1). It is also undisputed that plaintiffs do not know how long

the substance upon which Mr. Chappell slipped had been on the floor. (D. Chappell Dep.

at 75, 77-78). 

CONCLUSIONS OF LAW

1. Summary Judgment Standard

A defendant is entitled to summary judgment “if the pleadings, depositions,

answers to interrogatories and . . . affidavits . . . show that there is no genuine issue as to

any material fact and that [the defendant is] entitled to a judgment as a matter of law.” 

Fed. R. Civ. P. 56(c) (emphasis added). Under Rule 56(c):

A factual dispute is “genuine” if the evidence is such that a

reasonable jury could return a verdict for the non-moving

party. A fact is “material” if it might affect the outcome of

the suit under governing substantive law.

Beck v. Somerset Technologies, Inc., 882 F.2d 993, 996 (5th Cir. 1989) (citing Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “Where the record taken as a whole could

not lead a rational trier of fact to find for [the plaintiffs], there is no genuine issue for

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trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). 

Summary judgment is appropriate if the plaintiffs fail to produce sufficient evidence to

raise a genuine issue of material fact on the existence of an essential element of their

claims. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Manor Healthcare Corp.

V. Lomelo, 929 F.2d 633, 636 (11th Cir. 1991). In considering defendant’s motion for

summary judgment, the Court views the facts presented, together with all reasonable

inferences arising from the facts, in the light most favorable to the plaintiffs. Adickes v.

S.H. Kress & Co., 398 U.S. 144, 157 (1970); Cooper v. Southern Co., 390 F.3d 695, 723

(11th Cir. 2004). As the moving party, the defendant has the initial burden of showing the

absence of a genuine issue of material fact. Id. Once the defendant makes that showing,

the burden shifts to the plaintiffs to “come forward with specific facts showing that there

is a genuine issue for trial.” Matsushita Elec. Indus. Co., 475 U.S. at 586-87 (1986). 

Confronted with a properly supported motion for summary judgment, the plaintiffs must

adduce admissible evidence which creates a material factual dispute. Clarke v. Coats &

Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). Plaintiffs must do more than “simply

show there is some metaphysical doubt as to the material facts.” Anderson, 477 U.S. at

251-52. They must produce evidence. Id.

As specifically applicable to the case at bar, once a defendant makes a prima facie

showing that it had no actual or constructive knowledge of the presence of a substance

which caused a slip and fall, and that the defendant was not derelict in failing to discover

and remove the substance, “the burden shifted to the plaintiff to present substantial

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evidence that the alleged substance that caused her to fall had been on the floor for such a

length of time that constructive notice of its presence could be imputed to the defendants;

that the defendants had actual notice that the substance was on the floor; or that the

defendants were delinquent in not discovering and removing the substance.” Speer v. Pin

Palace Bowling Alley, 599 So.2d 1140, 1143-44 (Ala. 1992). If plaintiffs fail to proffer

the requisite evidence on any of the elements of their claim, defendant is entitled to

summary judgment. Id. 

2. Plaintiffs’ Slip and Fall Claim.

In Maddox v. K-Mart Corp., 565 So.2d 14 (Ala.1990), the Alabama Supreme

Court succinctly summarized the applicable law in "slip and fall" cases as follows: 

[A] storekeeper is under a duty to exercise reasonable care to provide

and maintain reasonably safe premises for the use of his customers.

However, the storekeeper is not an insurer of the customer's safety,

and is liable for injury only if he negligently fails to use reasonable

care in maintaining his premises in a reasonably safe condition. The

plaintiffs must prove that the injury was proximately caused by the

negligence of [the storekeeper] or one of its servants or employees.

Actual or constructive notice of the presence of the substance must

be proven before [the storekeeper] can be held responsible for the

injury. Furthermore, the plaintiffs must prove (1) that the substance

slipped upon had been on the floor a sufficient length of time to

impute constructive notice to [the storekeeper]; or (2) that [the

storekeeper] had actual notice that the substance was on the floor; or

(3) that [the storekeeper] was delinquent in not discovering and

removing the substance." 

565 So.2d at 16. 

As applied to the case at bar, plaintiffs have failed to proffer any evidence either

that the defendant had act notice of the substance upon which Mr. Chappell slipped, or

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Plaintiffs’ reliance upon Howard v. Kroger Co., 752 So.2d 504 (Ala. Civ. App. 1999), is

misguided. In Kroger plaintiff proffered evidence of an employee’s statement that the water on

the floor came from the defendant’s meat cooler. Plaintiffs in this case have proffered no

evidence that Wal-Mart itself placed the substance on the floor and thus “created the danger.” 

Similarly, Cash v. Winn-Dixie Montgomery, Inc., 418 So.2d 874, 876 (Ala. 1982), offers no

support to the plaintiffs in this case. In Cash, the court surmised that “[a] can may have been

dropped on the floor by another customer only minutes before the plaintiff fell” and thus there

existed no evidence from which a jury could reasonably infer “that the substance had been on the

floor long enough to raise a duty on the defendant to discover and remove it.” Nor is this a case

in which the amount of accumulated rainwater created a jury question as in Strahsburg v. WinnDixie Montgomery. Inc., 601 So.2d 916, 919 (Ala. 1992) and Neel-Gilley v. McCalliater, 753

So.2d 531, 533-34 (Ala. Civ. App. 1999).

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that the substance had been on the floor a sufficient length of time to impute constructive

notice.1

 Consequently, Wal-Mart is entitled to summary judgment in this action. See,

also, East v. Wal-Mart Stores, Inc., 577 So.2d 459 (Ala.1991) (affirming a summary

judgment for the defendant where the plaintiff and her only witness testified that they did

not know how long the substance had been on the floor and that they did not believe that

the defendant had any notice the substance was there until after the accident); Brown v.

Autry Greer & Sons, Inc., 551 So.2d 1049 (Ala.1989) (affirming a summary judgment for

the defendant where the plaintiff presented no evidence to show that the defendant had

actual or constructive notice of the substance in question, or that the defendant was

delinquent in not discovering and removing it); Vargo v. Warehouse Groceries Mgt., Inc.,

529 So.2d 986 (Ala.1988) (affirming a summary judgment for the defendant where the

plaintiff and her only witness testified that they had no idea how long the puddle of water

on which the plaintiff had slipped had been on the floor, except that it "looked like it had

been there for a while," and where there was no other evidence as to how long the water

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had been present or that the defendant had notice of it); Cash v. Winn-Dixie Montgomery,

Inc., 418 So.2d 874 (Ala.1982) (affirming a summary judgment for the defendant where

there was no evidence that the defendant knew that the foreign substance had been on the

floor for such a length of time "as to impute constructive notice").

CONCLUSION AND ORDER

For the reasons stated above, the Court concludes and it is therefore ORDERED

that defendant’s motion for summary judgment is due to be and is hereby GRANTED

and that JUDGMENT be entered in favor of the defendant, Wal-Mart Stores East, LP ,

and against the plaintiffs, Michael Chappell and Darlene Chappell, the plaintiffs to have

and recover nothing of the defendant. Costs are taxed against the plaintiffs.

DONE this 14th day of March, 2006.

 s/ W. B. Hand 

SENIOR DISTRICT JUDGE

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