Charlotte Autry v. Wal-Mart Stores, Inc. ( 2019 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 19a0524n.06
No. 19-3125
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
CHARLOTTE AUTRY, ) FILED
) Oct 16, 2019
Plaintiff-Appellant, ) DEBORAH S. HUNT, Clerk
)
v. )
) ON APPEAL FROM THE UNITED
WAL-MART STORES, INC., WAL-MART ) STATES DISTRICT COURT FOR THE
REAL ESTATE BUSINESS TRUST, and ) NORTHERN DISTRICT OF OHIO
WAL-MART STORES EAST L.P., )
)
Defendants-Appellees. )
BEFORE: MERRITT, DAUGHTREY, and GRIFFIN, Circuit Judges.
PER CURIAM. The district court, exercising its diversity jurisdiction, granted summary
judgment in favor of defendants, Wal-Mart Stores, Inc., Wal-Mart Real Estate Business Trust, and
Wal-Mart Stores East L.P. (collectively Wal-Mart), on a negligence claim asserted by plaintiff
Charlotte Autry. According to Autry, Wal-Mart breached its duty to maintain the parking lot at
its Wauseon, Ohio, store in a reasonably safe condition. As a result, Autry asserts that she tripped
on a crack in the parking lot, fell, injured her elbow, and dislocated her shoulder. Because the
danger identified by Autry was open and obvious, however, Wal-Mart breached no duty owed to
Autry. Furthermore, no attendant circumstances diverted Autry’s attention and contributed to her
fall. We thus find Autry’s claims to be without merit as a matter of law and affirm the judgment
of the district court for the reasons set forth in the district court’s written order in this matter.
No. 19-3125, Autry v. Wal-Mart Stores, Inc., et al.
The uncontroverted facts before the district court established that Autry visited the
Wauseon Wal-Mart store on Super Bowl Sunday, February 7, 2016, to purchase groceries.
Because no parking spaces designated for use by handicapped individuals were unoccupied,1 Autry
parked illegally in a no-parking area designated by painted, diagonal stripes. In close proximity
to Autry’s parked car was a long, narrow, shallow crack in the parking lot surface that extended
through the striped area and into the lot between rows of parking spaces. Autry crossed over the
crack to get to the store, crossed over it a second time when she returned to her car with her
purchases, and crossed it yet a third time when she wheeled her shopping cart to a Wal-Mart
employee who was collecting carts in the parking lot. Only as she approached the crack for the
fourth time did she trip and fall.
Although Autry claimed she did not see the crack before she fell because she was scanning
the lot for vehicles and other pedestrians, she admitted in deposition testimony that had she looked
down, she “would have had to have seen it.” She also conceded that at the time she fell, her
attention was not distracted in any way.
In light of such facts, the district court concluded that the danger posed by the narrow crack
was open and obvious and was capable of being observed by an objective, reasonable person.
Thus, under relevant Ohio law, absent attendant circumstances that distracted Autry from noticing
the crack, Wal-Mart would be entitled to summary judgment on the negligence claim.
Attendant circumstances are those distractions that tend to reduce the degree of care that
ordinary individuals would exercise under normal circumstances by “divert[ing] the attention of
the injured party, significantly enhanc[ing] the danger of the defect, and contribut[ing] to the
injury.” McCoy v. Wasabi House, LLC, 104 N.E.3d 102, 114 (Ohio Ct. App. 2018) (citation
1
Autry had a placard that authorized her to park in spots reserved for handicap individuals.
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No. 19-3125, Autry v. Wal-Mart Stores, Inc., et al.
omitted). Autry contends that the painted diagonal lines in the area where she parked, the black
sealant over part of the crack, signs in the parking lot, the presence of an employee retrieving
shopping carts, and vehicular and pedestrian traffic were the type of distractions that would and
did keep her from observing the crack over which she tripped. Again, however, the evidence in
the record before us indicates unequivocally that Autry was not distracted as she approached her
car, that she would have seen the crack had she looked down briefly as she walked, and that at the
time of her fall, there was almost no vehicular or pedestrian traffic in the immediate area. The
district court thus did not err in concluding that “no reasonable juror could find that attendant
circumstances distracted Autry’s attention, such that the open and obvious doctrine would be
inapplicable.”
The relevant law and the reasons why summary judgment should be entered for Wal-Mart
in this case were articulated ably by the district court in its written order addressing Autry’s claims.
The issuance of a full written opinion by this court thus would be duplicative and would serve no
useful precedential purpose. We thus AFFIRM the judgment of the district court for the reasons
set forth in the district court’s order of summary judgment filed on January 24, 2019, and reported
at 2019 WL 315038.
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