933 F. Supp. 2d 920
E.D. Mich.2013Background
- Plaintiff Diane Gainer sued Wal-Mart for injuries from a slip-and-fall in Wal-Mart's Livonia, Michigan store on September 13, 2008.
- The vestibule floor where the fall occurred was wet and shiny; mats presence is disputed and no warning signs or cones were posted.
- Unidentified customers allegedly stated that someone had been mopping the vestibule, statements offered to prove the floor was mopped by Wal-Mart employees.
- Plaintiff and her daughter lacked personal knowledge about how the water arrived on the floor or when mopping occurred; they did not observe water in the vestibule.
- Wal-Mart's assistant manager Anne Greer swore that the vestibule was well maintained, inspected, and had mats, with no prior complaints.
- The court granted summary judgment for Wal-Mart, concluding plaintiffs failed to prove breach of duty and notice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the unidentified declarants’ statements are admissible under hearsay exceptions | Gainer relies on present sense impression or excited utterance. | Unidentified statements lack personal knowledge and reliability; not admissible. | Not admissible under present sense impression or excited utterance; fails personal knowledge requirement. |
| Whether the declarants had personal knowledge of the mopping to satisfy Rule 602 | Declarants personally observed mopping; statements prove mopping occurred. | No evidence that declarants observed mopping; statements insufficient to prove personal knowledge. | Plaintiff failed to prove declarants had personal knowledge; statements unreliable. |
| Whether Wal-Mart had actual or constructive notice of a hazardous condition | Evidence shows water on floor and perhaps recent mopping; notice inferred. | No evidence when water accumulated; inspections found no hazard; no notice. | No genuine dispute; no notice established; breach not proven. |
| Whether there is a breach of duty by Wal-Mart under Michigan law | Wal-Mart failed to keep vestibule safe; created or allowed hazard. | No admissible evidence of dangerous condition or notice; reasonable care shown. | No breach proven; summary judgment in defendant's favor. |
Key Cases Cited
- Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (summary judgment standard; burden shifting)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) (admissibility and weighing of evidence; genuine disputes)
- Miller v. Keating, 754 F.2d 507 (1985) (unidentified declarants and personal knowledge in hearsay)
- United States v. Arnold, 486 F.3d 177 (2007) (excitement/observational requirements; corroboration)
- Beck v. Dye, 200 Wash. 1 (1939) (unidentified declarants; lack of personal knowledge)
- Sanitary Grocery Co. v. Snead, 90 F.2d 374 (1937) (hearsay exceptions and observing witnesses)