Bowling v. Wal-Mart Stores , 233 F. App'x 460 ( 2007 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 07a0334n.06
Filed: May 11, 2007
No. 06-5589
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
TAMMY RENNA BOWLING and TONY
BOWLING,
Plaintiffs-Appellants,
v. ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
WAL-MART STORES, INC., EASTERN DISTRICT OF TENNESSEE
Defendant-Appellee.
/
BEFORE: SUHRHEINRICH, CLAY, and ROGERS, Circuit Judges.
CLAY, Circuit Judge. Plaintiffs, Tammy Renna Bowling and Tony Bowling, appeal the
district court’s grant of summary judgment to Defendant, Wal-Mart Stores, Inc., on their premises
liability claim. Specifically, Plaintiffs contend that the district court1 erred in ruling on Defendant’s
summary judgment motion before the time for discovery had passed, and that a genuine issue of
material fact remained on their premises liability claim. For the reasons that follow, we AFFIRM.
BACKGROUND
1
With the consent of the parties, this case was assigned to a magistrate judge for final
disposition. Throughout this opinion, we refer to the magistrate judge as “the district court.”
No. 06-5589
This suit arose from a slip-and-fall at one of Defendant’s Knoxville, Tennessee stores. On
January 6, 2002, Plaintiffs were shopping at Defendant’s store when Plaintiff Tammy Bowling
slipped and fell on a puddle in the store’s sporting goods section, which resulted from a leak in the
store’s ceiling. On January 6, 2003, Plaintiffs filed a premises liability suit against Defendant in
Knox County Circuit Court. Defendant subsequently removed the matter to federal district court on
the basis of diversity-of-citizenship jurisdiction.
Trial in this case was continued several times over. On April 15, 2004, the district court
entered an order approving substitution of Plaintiffs’ counsel. At that time, the parties mutually
agreed to continue trial from May 10, 2004 to March 1, 2005, and the district court entered an order
to that effect. On February 2, 2005, the parties brought a joint motion to continue, and the district
court again entered an order continuing trial to August 16, 2005. Plaintiffs brought a second motion
to continue on March 15, 2005, which the court granted, rescheduling the trial for November 29,
2005. On August 30, 2005, Plaintiffs again moved to continue trial, citing a need to complete
medical depositions since Plaintiff Tammy Bowling’s physician had not yet released her from
treatment.
That same day, Defendant filed a motion for summary judgment. Plaintiffs requested an
extension of time to respond, asserting a need to depose two of Defendant’s employees, whose
names and contact information they had yet to receive. The district court granted the request.
Plaintiffs filed their response to Defendant’s motion on October 24, 2005. On November 1, 2005,
the court again continued trial to February 21, 2006; scheduled a pretrial conference for January 31,
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No. 06-5589
2006; and directed the parties to complete discovery by January 31, 2006. The district court granted
summary judgment to Defendant on December 28, 2005.
At the time the district court granted Defendant’s motion for summary judgment, the
evidence was as follows. Plaintiffs deposed Defendant’s store manager, Scott Nickens (“Nickens”),
and Nickens additionally submitted an affidavit in support of Defendant’s motion for summary
judgment. In his affidavit,2 Nickens stated that Defendant did not construct the store building and
did not own the building. Rather, he averred that Defendant leased the building and, by agreement,
was obligated to pay for repairs to the building’s roof. Nickens indicated that an investigation
following Plaintiff Tammy Bowling’s fall “revealed that, earlier in the day, it had begun to snow,
and that, shortly before [her] accident, a leak had developed in the roof over the sporting goods
department.” (J.A. at 29-30) Nickens stated that Defendant’s employees did not know of the leak
before Plaintiff’s fall. With respect to other occurrences, Nickens averred that a leak near the store’s
cash registers – an entirely different part of the store – was identified on November 30, 2001 and
quickly repaired.
The parties also deposed Davey Eugene Hammond (“Hammond”), the manager of the
sporting goods department at Defendant’s store. At his deposition, Hammond testified that
Defendant trained its employees to conduct safety sweeps and, if they encountered a spill or
otherwise hazardous condition, “to remain with the spill or turn over the object or whatever the
hazard may be, remain with it, and get another associate to go get the things to clean it up whether
2
That portion of Nickens’ deposition contained in the record consists of only one page and
neither harms nor advances Plaintiffs’ claim.
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No. 06-5589
it’d be putting up caution cones, mop, whatever.” (J.A. at 67) According to Hammond, “[s]omeone
stayed with the spill at all times, as soon as we noticed it.” (Id.) Hammond testified that the sporting
goods department spanned six or seven aisles at the time of the spill and that two employees would
typically be on the floor in the department, except during their break times. One of the sporting
goods employees was required to remain near the guns and ammunition counter at all times and,
thus, was more restricted in his ability to scan and straighten the aisles.
The incident in question occurred on a Sunday night. During his deposition, Hammond
testified that on some Sunday nights, fewer than two people worked in the sporting goods
department. The accident report did not indicate, and Hammond could not remember, which
sporting goods employees were working during the second shift on January 6, 2002. The employees
named on the accident report were Kathy Redmond (“Redmond”), a stocker, and Angela Hodsden
(“Hodsden”), an assistant manager. Hammond indicated that the roof over the sporting goods
department had never leaked before. He described the leak with reference to photos taken as a part
of the accident report. By Hammond’s account, the water leaked down onto a counter in the
camouflage aisle and then ran down to the floor.
A work order dated January 8, 2002 reflects a leak in the roof reported in the domestics and
crafts section of the store. The record additionally contains a pre-construction document setting forth
Defendant’s asphalt roof specifications.
Plaintiff Tammy Bowling also gave her deposition. She testified that she and her husband
had finished shopping, and that she went to check out while he left the store to get the car. Before
checking out, Plaintiff recalled that her husband wanted arrows and went back to the sporting goods
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No. 06-5589
section to find them. After retrieving the arrows, she walked down another aisle back towards the
cash registers, at which time she slipped in the water. Plaintiff indicated there was “[a] pretty good
bunch of water” on the ground – enough to leave her “jeans and shirt and hair . . . wet.” (J.A. at 83)
She estimated the puddle spanned two or three feet in diameter. Plaintiff fell “almost completely flat
on [her] back, [with] the majority of [her] weight on [her] left hip.” (Id. at 84) Plaintiff testified that
a fellow customer responded, having heard her fall, and made her lie still on the floor. On the basis
of this evidence, the district court granted summary judgment.
After the district court granted summary judgment, Plaintiffs filed a motion to alter the
judgment pursuant to Federal Rule of Civil Procedure 59(e). In support of the motion, Plaintiffs
attached several exhibits not previously filed with the court, including a transcript from Plaintiffs’
November 16, 2005 deposition of Theresa Earline Bailey (“Bailey”). Defendant identified Bailey
as one employee who worked in its sporting goods department on the date in question. Bailey
testified that her work in sporting goods entailed selling licenses, putting freight out, and other
customer service-related tasks. When asked about her training for the sporting goods position,
Bailey replied that “[n]othing in particular” had been required, but that she “learn[ed] how to read
bar codes and put stuff where it goes.” (J.A. at 135) When asked about training more generally, she
replied, “When you go to work there, we go through what they call computer based learning. And
it’s all the ins and outs of what’s expected of you, money handling, HAZMAT, and, of course, in my
department, we’re specialized.” (Id. at 136) However, Bailey subsequently clarified that computer
training was a new phenomenon and she had only completed computer training “in the last three to
four years.” (Id.)
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No. 06-5589
Bailey testified that, even before the onset of computer training, Defendant taught its
associates to pick up errant objects in the aisles, to clean spills up, and where water had been spilt,
to “put down a cone and . . . stand with the spot until [they] get somebody to come over and . . . clean
it up.” (J.A. at 136) She stated that associates check their respective departments “[e]very time
[they’re] going through,” but that sporting goods associates do so less frequently because one
employee must remain near the guns and ammunition. (Id. at 137) Bailey further indicated that
Defendant’s employees now conduct scheduled “safety sweeps,” but that such sweeps typically occur
only twice in an eight-hour period. Bailey could not recall whether she actually worked on January
6, 2002 at the time Plaintiff Tammy Bowling fell, could not recall hearing that a customer had
slipped in the sporting goods department, did not remember that the roof in sporting goods sprung
a leak, and did not recall seeing the cones and buckets placed in the aisle to catch the dripping water
after Plaintiff’s fall. Bailey did recall, however, that in 1994 when the building was being
remodeled, the roof over what eventually became the sporting goods department leaked enough that
she had to “put coolers up [near the roof] to gather the water in and . . . run siphon hoses down to
. . . big barrels because [she] couldn’t get up and down the ladders carrying the water to keep it
emptied.” (Id. at 141)
Also in support of their Rule 59(e) motion, Plaintiffs attached Defendant’s Response to
Plaintiffs’ Interrogatories, which Plaintiffs had in their possession since February 2005. Therein,
Defendant avers that it “first became aware of the subject leak on January 6, 2002, after the plaintiff
reported that she had slipped and fell in water on the floor.” (J.A. at 150) Defendant further
acknowledged finding a leak near the check out counters on November 30, 2001. The district court
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No. 06-5589
conducted a hearing on February 17, 2006 on Plaintiffs’ Motion to Alter Judgment under Rule 59(e).
On March 29, 2006, the court issued an order denying that motion. Plaintiffs timely appealed.
DISCUSSION
I. WHETHER THE DISTRICT COURT ABUSED ITS DISCRETION IN ENTERING
SUMMARY JUDGMENT BEFORE THE SCHEDULED PRETRIAL CONFERENCE.
A. Standard of Review
Although this case arises in diversity and Tennessee substantive law applies, the Federal
Rules of Civil Procedure and federal standards govern our review of the district court’s grant of
summary judgment. Gafford v. Gen. Elec. Co., 997 F.2d 150, 165-66 (6th Cir. 1993) (citing Lewis
Refrigeration Co. v. Sawyer Fruit, Vegetable & Cold Storage Co., 709 F.2d 427, 430 n.3 (6th Cir.
1983)). We review for abuse of discretion a district court’s entry of summary judgment where the
non-movant claims that he required additional time to adequately complete discovery. Vance v.
United States, 90 F.3d 1145, 1149 (6th Cir. 1996) (citing White’s Landing Fisheries, Inc. v.
Buchholzer, 29 F.3d 229, 231-32 (6th Cir. 1994)).
B. Timing of the District Court’s Summary Judgment Grant
Plaintiffs first contend that the district court erred in granting summary judgment prior to the
discovery cut-off date purportedly established under a pretrial order. We hold that the district court
did not abuse its discretion.
Initially, we note that the record reflects some confusion over the district court’s anticipated
schedule for ruling on Defendant’s summary judgment motion. On November 1, 2005, the district
court held a conference call with the parties to resolve Plaintiffs’ pending motion to continue.
During that call, the district court granted the motion and rescheduled trial. According to the court’s
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No. 06-5589
minutes, the parties were “to complete the following before the Pretrial Conference on January 30
[sic], 2006: doctor’s rating, depositions, discovery, and mediation.” (J.A. at 85) The district court’s
subsequent order similarly states that the court expected the “parties to complete all discovery . . .
by the time of the pretrial conference.” (Id. at 98) Yet, the district court’s December 28, 2005 order
granting summary judgment reflects a slightly different version of events. There, the district court
recounted:
. . . [T]he plaintiffs request that the Court reserve ruling on the motion until the
defendant has produced certain documents and the names of certain witnesses so that
the plaintiffs may supplement their response. . . . In a telephone conference on
November 1, 2005, the parties indicated that the plaintiffs had received the names of
these witnesses, and the Court advised the plaintiffs’ attorney that he had thirty days
to complete discovery. Thirty days have now passed, plus an additional ten days,
during which no supplemental brief or response has been filed. Accordingly, the
Court finds it is timely to rule on the defendant’s motion for summary judgment.
Bowling v. Wal-Mart Stores, Inc., No. 3:03-CV-367, 2005 WL 3560647, at *1 (E.D. Tenn. Dec. 28,
2005) (unpublished) (hereinafter “Bowling I”) (emphasis added). Notwithstanding this apparent
confusion, the district court’s order denying Plaintiffs’ Rule 59(e) motion reflects that Plaintiffs
“conceded that the Court had the right to rule on the summary judgment motion prior to the pretrial
conference” during the February 2006 hearing on that motion. Bowling v. Wal-Mart Stores, Inc., No.
3:03-CV-367, 2006 WL 840410, at *2 (E.D. Tenn. Mar. 29, 2006) (unpublished) (hereinafter
“Bowling II”).
Even assuming Plaintiffs had not conceded the issue, we find no abuse of discretion in the
district court’s decision to rule on Defendant’s summary judgment motion at that juncture.
“[D]istrict courts are widely acknowledged to possess the power to enter summary judgment sua
sponte, so long as the losing party was on notice that she had to come forward with all of her
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No. 06-5589
evidence.” Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986). Because “the scope of discovery is
within the sound discretion of the trial court,” the non-movant has “no absolute right to additional
time for discovery.” Emmons v. McLaughlin, 874 F.2d 351, 356 (6th Cir. 1989) (citations omitted).
Nevertheless, the district court must afford the non-movant a “sufficient opportunity for discovery.”
Vance, 90 F.3d at 1148 (citing White’s Landing Fisheries, Inc., 29 F.3d at 231-32); see also Celotex,
477 U.S. at 322-23 (“[T]he plain language of Rule 56(c) mandates the entry of summary judgment,
after adequate time for discovery and upon motion.”) (emphasis added); Abercrombie & Fitch
Stores, Inc. v. Am. Eagle Outfitters, Inc., 280 F.3d 619, 627 (6th Cir. 2002) (citations omitted).
Plaintiffs preserved the argument that the district court granted summary judgment too soon
by filing a motion for continuance in September 2005, and by requesting additional time for
discovery in their response to Defendant’s motion for summary judgment. We review Plaintiffs’
claim that the district court abused its discretion by granting summary judgment before discovery
was complete under the five factor inquiry announced in Plott v. Gen. Motors Corp., Packard Elec.
Div., 71 F.3d 1190, 1196-97 (6th Cir. 1995) (citations omitted). Under Plott, we consider:
(1) when the appellant learned of the issue that is the subject of the desired discovery,
(2) whether the desired discovery would have changed the ruling below,
(3) how long the discovery period had lasted,
(4) whether the appellant was dilatory in its discovery efforts, and
(5) whether the appellee was responsive to discovery requests.
Plott, 71 F.3d at 1196-97 (internal citations omitted).
Here, Plaintiffs sought additional time to depose the two employees who worked in
Defendant’s sporting goods department on the date of Plaintiff Tammy Bowling’s fall. Plaintiffs
undoubtedly knew early on that they wanted to depose these employees on the subjects of their work
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No. 06-5589
on the days in question and their floor sweeps more generally. The first factor cuts against Plaintiffs.
As to the second factor, Plaintiffs did not, or could not, show that additional discovery would alter
the district court’s summary judgment decision. Cf. E. Ky. Cardiothoracic Surgery v. Ashland Hosp.
Corp., 119 F. App’x 715, 717 (6th Cir. 2004) (unpublished). Defendant identified Bailey and John
Crowley (“Crowley”) as the two employees that worked in the sporting goods department on the date
of Plaintiff’s accident. Bailey’s deposition occurred on November 16, 2005 and Plaintiffs make no
attempt to explain their failure to file the deposition more promptly, especially since they had already
filed their response to Defendant’s summary judgment motion. At any rate, the district court granted
summary judgment because Plaintiffs could not show that Defendant had actual or constructive
notice of the puddle of water. The Bailey deposition does not establish notice.3 For the most part,
her testimony was cumulative of the sporting goods department manager’s testimony and, in fact,
she could not recall having worked on the day in question or that an accident occurred in her
department. The second employee, Crowley, could not be located for a deposition. Plaintiffs “must,
at a minimum, be able to show that [they] could obtain information through discovery that would
disclose material facts.” Sierra Club v. Slater, 120 F.3d 623, 638 (6th Cir. 1997). This, they cannot
do.
Third, in the instant case, Plaintiffs had more than ample time to conduct searching and
meaningful discovery. The district court willingly and generously permitted the parties to continue
trial in this matter. In fact, the district court continued trial a total of nearly twenty-two months, from
3
In her deposition testimony, Bailey stated that the roof over the then-sporting goods
department had leaked during remodeling of the building in 1994. However, nothing in the record
indicates that it continued leaking after the completion of remodeling work.
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No. 06-5589
an initial date of May 10, 2004 to February 21, 2006. Following several continuances, the district
court additionally granted Plaintiffs’ September 28, 2005 request for extension of time to respond
to Defendant’s motion for summary judgment. Therein, Plaintiffs cited a need to depose two of
Defendant’s employees, whose names and contact information Plaintiffs had apparently requested
from Defendant. At that point, discovery had been ongoing for at least seventeen months. Fourth,
Plaintiffs apparently did not pursue discovery diligently inasmuch as they required additional time
notwithstanding twenty-two months worth of continuances. Finally, Plaintiffs point to nothing in
the record to show that Defendant did not timely respond to its discovery requests.
In their brief on appeal, Plaintiffs cite Grisham v. McLaughlin, an unpublished Tennessee
state case, to emphasize “the importance of allowing for discovery to be completed before a trial
court rules on a motion for summary judgment.” (Pl.’s Br. at 15) First, as an unpublished state court
case, it does not bear on our inquiry under the Federal Rules of Civil Procedure. Second, Grisham
is easily distinguishable from the instant case. In Grisham, the plaintiff filed a medical malpractice
suit against her physician, who then moved for summary judgment three and one-half months later.
Grisham v. McLaughlin, No. M2004-01662-COA-R3-CV, 2006 WL 1627274, at *2 (Tenn. Ct. App.
June 12, 2006) (unpublished) (emphasis added). The plaintiff filed a motion to continue in order to
depose the physician and respond properly to his summary judgment motion. Id. The physician
initially failed to respond to plaintiff’s requests for a deposition. Id. When the physician was finally
deposed, he refused to waive signature. Id. at *3. The day after his deposition, the physician filed
a motion to dispose of his pending summary judgment motion and the court scheduled a hearing on
the motion to occur fifteen days later. Id. By the hearing date, the plaintiff still had not received a
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No. 06-5589
copy of the physician’s deposition and, thus, had no opportunity to obtain expert review. Id. The
court disregarded the plaintiff’s objections to the hearing and granted summary judgment to the
physician less than a week later. Id.
Unlike Grisham, this is simply not a case where the district court prematurely ruled on
summary judgment. Plaintiffs had more than ample time to conduct adequate discovery in this case,
totaling over seventeen months. Plaintiffs had deposed Defendant’s store manager and the sporting
goods department manager, and had received some documentary evidence (the roof specifications
and a work order for a leak elsewhere in the roof) as well as responses to interrogatories from
Defendant. On November 16, 2005, Plaintiffs deposed Bailey, the employee in Defendant’s sporting
goods department, but Plaintiffs failed to file Bailey’s deposition before the district court entered
summary judgment over a month later. At any rate, that deposition does little to save Plaintiffs’
case. All in all, the district court’s decision to rule on Defendant’s summary judgment motion in
December 2005 ran consistent with a “principal purpose[] of the summary judgment rule . . . to
isolate and dispose of factually unsupported claims or defenses.” See Celotex, 477 U.S. at 323-24.
Consequently, we hold that the district court did not abuse its discretion in ruling on the
summary judgment motion before the scheduled pre-trial conference, as Plaintiffs had more than an
adequate opportunity to conduct discovery in this case. Compare Vance, 90 F.3d at 1147 (finding
the district court abused its discretion when it entered summary judgment three months after the
plaintiff filed his complaint and before any discovery), with E. Ky. Cardiothoracic Surgery, 119 F.
App’x at 717 (no abuse where district court denied Rule 56(f) motion after fourteen month discovery
period wherein plaintiff conducted only one deposition).
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No. 06-5589
II. WHETHER THE DISTRICT COURT ERRED IN GRANTING SUMMARY
JUDGMENT TO DEFENDANT ON PLAINTIFFS’ PREMISES LIABILITY CLAIM.
A. Standard of Review
We review de novo a district court’s grant of summary judgment. Plant v. Morton Int’l, Inc.,
212 F.3d 929, 933-34 (6th Cir. 2000) (citing EEOC v. Northwest Airlines, Inc., 188 F.3d 695, 701
(6th Cir. 1999)). Summary judgment is appropriate where there exist no genuine issues of material
fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). On a
motion for summary judgment, we credit all evidence submitted by the non-moving party. Celotex,
477 U.S. at 323. Additionally, we draw all reasonable inferences in favor of the non-moving party.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
B. Plaintiffs’ Premises Liability Claim
The district court granted summary judgment having found no evidence either “that Wal-
Mart caused or created the puddle of water in which Ms. Bowling fell,” Bowling I, 2005 WL
3560647, at *3, or that Defendant had actual or constructive notice of the problem. Specifically, the
district court found nothing to indicate “how long the water had been leaking,” that Defendant’s
employees had neglected to make regular inspections, or that such leaks recurred with sufficient
frequency to place Defendant on constructive notice of the existence of the puddle. Id. We hold that
the district court properly granted summary judgment to Defendant on Plaintiffs’ premises liability
claim.
Tennessee’s substantive law of negligence applies to Plaintiffs’ claim. In Tennessee, to
succeed on a suit in negligence, the plaintiff must show (1) the defendant owed the plaintiff a duty
of care; (2) the defendant breached that duty of care; (3) the plaintiff suffered some injury or loss;
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No. 06-5589
(4) cause in fact; and (5) proximate cause. McClung v. Delta Square Ltd. P’ship, 937 S.W.2d 891,
894 (Tenn. 1996). Additionally, to hold an owner or operator of premises liable in negligence for
a dangerous or defective condition on its premises, the plaintiff must show either (1) that the
premises owner or operator caused the condition, or (2) if not, “that the owner or operator had actual
or constructive notice that the condition existed prior to the accident.” Blair v. West Town Mall, 130
S.W.3d 761, 764 (Tenn. 2004) (citing Martin v. Washmaster Auto Ctr., U.S.A., 946 S.W.2d 314, 318
(Tenn. Ct. App. 1996)); see also Martin v. Wal-Mart Stores, Inc., 159 F. App’x 626, 627-28 (6th Cir.
2005) (unpublished).
“[C]onstructive notice can be established by proof that the dangerous or defective condition
existed for such a length of time that the defendant, in the exercise of reasonable care, should have
become aware of the condition.” Blair, 130 S.W.3d at 764 (citing Simmons v. Sears, Roebuck & Co.,
713 S.W.2d 640, 641 (Tenn. 1986)); see also Washmaster Auto Ctr., 946 S.W.2d at 318.
Additionally, a plaintiff can prove constructive notice through “a pattern of conduct, a recurring
incident, or a general or continuing condition indicating the dangerous condition’s existence.” Blair,
130 S.W.3d at 765-66; see also Washmaster Auto Ctr., 946 S.W.2d at 320. The recurring conduct
or continuing condition must be specific to the location where the incident at issue occurred. That
is, notice of a general or continuing condition in one area of the premises does not necessarily
support a finding of constructive notice as to another area. See Blair, 130 S.W.3d at 767; Martin,
159 F. App’x at 629-30; Tinsley v. Wal-Mart Stores, Inc., 155 F. App’x 196, 198 (6th Cir. 2005)
(unpublished).
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No. 06-5589
The district court correctly found that no genuine issue of material fact existed as to whether
Defendant caused the condition, or alternatively, whether Defendant had actual or constructive notice
of the dangerous condition. There is no evidence in the record to support a finding that Defendant
caused the condition or had actual notice of the condition. Plaintiffs could therefore survive
summary judgment only if record evidence, construed in their favor, demonstrated constructive
knowledge.
The record does not support a finding that the leak in Defendant’s sporting goods department
“existed for such a length of time that [Defendant], in the exercise of reasonable care, should have
become aware of the condition.” See Blair, 130 S.W.3d at 764; Washmaster Auto Ctr., 946 S.W.2d
at 318. Plaintiff Tammy Bowling testified that the water from the leak was “[a] pretty good bunch
of water” on the ground which left her “jeans and shirt and hair . . . wet.” (J.A. at 83) Plaintiff
estimated the puddle was two to three feet wide at the time of her fall. Plaintiffs rely on the amount
of water to raise an inference that it had been on the floor long enough to be discovered by
Defendant. As the district court properly observed, however, “[t]he mere existence of a two-foot to
three-foot wide puddle does not indicate that a particular amount of time has passed; the puddle
could have been created over the period of ten hours or ten seconds.” Bowling I, 2005 WL 3560647,
at *3. Plaintiffs baldly assert that Defendant “failed to follow its own procedures to safety check for
hazards.” (Pl.’s Br. at 18) Defendant does not dispute that its employees were trained to conduct
safety sweeps and to promptly address potentially dangerous conditions. Yet, we find nothing to
indicate that Defendant’s employees were not following these procedures on the day in question.
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No. 06-5589
We cannot say that Defendant failed to exercise reasonable care inasmuch as the record does not
establish how long the roof had been leaking and, correspondingly, how long the puddle existed.
Neither does the record reflect “a pattern of conduct, a recurring incident, or a general or
continuing condition indicating the dangerous condition’s existence” such that Defendant would be
put on notice of the leak in the sporting goods department. See Blair, 130 S.W.3d at 765-66;
Washmaster Auto Ctr., 946 S.W.2d at 320. This case is not unlike Martin v. Wal-Mart Stores,
another Tennessee diversity suit that came before this Court. In Martin, the plaintiff slipped and fell
in Wal-Mart’s health and beauty aids department on what appeared to be water. Martin, 159 F.
App’x at 627. As a result of rain earlier that day, the floors were wet in certain parts of the store.
Id. Additionally, the store’s roof had leaked in the past, but it had never leaked in the health and
beauty aids department. Id. On the question of constructive notice, the Martin court found that “[a]
history of leaks and spills in other departments could not have put Wal-Mart on notice of water
accumulating in the health and beauty aids department.” Id. at 629. Additionally, although
customers occasionally brought wet shopping carts into the department, this did not occur regularly
enough “in the part of the store where [the plaintiff] fell” to put Wal-Mart on constructive notice of
a dangerous condition. Id. at 629-30 (emphasis added).
Here, leaks had occurred in other parts of Defendant’s store on previous occasions –
including a leak above the cash registers identified on November 30, 2001 and one above domestics
and crafts on January 8, 2002. However, the roof over the sporting goods department had never
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No. 06-5589
leaked before.4 Although Plaintiffs find it significant that the roof warranty had expired, even taken
together with evidence of a leak in two other parts of Defendant’s store, the expired warranty does
not show a “general or continuing condition” sufficient to put Defendant on constructive notice of
the likelihood that its customers would suffer injury. Accordingly, we affirm the district court’s
grant of summary judgment inasmuch as Plaintiffs cannot establish actual or constructive notice of
the leak, or that Defendant somehow caused the dangerous condition.5
CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s order.
4
Bailey, in her deposition, testified that the roof over what later became the sporting goods
department leaked significantly in 1994 while the store underwent renovations. Notwithstanding
sufficient time to do so, Plaintiffs failed to file the Bailey deposition before the district court entered
summary judgment. Additionally, nothing in the record indicates that the roof leaked in that location
after renovations had been completed.
5
To the extent that Plaintiffs challenge the district court’s ruling on their Rule 59 motion, we
find the district court did not abuse its discretion in denying that motion. First, Plaintiffs’ Rule 59
motion was “premised on evidence that [Plaintiffs] had in [their] control prior to the original entry
of judgment.” See Emmons, 874 F.2d at 358 (citations omitted). In fact, Plaintiffs had two of these
documents in their control when they responded to Defendant’s motion for summary judgment on
October 24, 2005. What is more, the additional documentary evidence attached to Plaintiffs’ Rule
59(e) motion did little to create a genuine issue of material fact.
17