NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0405n.06
Filed: June 18, 2007
06-6129
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
LINDA BOOTH, )
)
Plaintiff-Appellant, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR THE
) WESTERN DISTRICT OF KENTUCKY
WAL-MART STORES EAST, L.P., )
)
Defendant-Appellee. )
Before: RYAN, DAUGHTREY, and ROGERS, Circuit Judges.
PER CURIAM. The plaintiff, Linda Booth, appeals pro se from the district court’s
grant of summary judgment to the defendant, Wal-Mart Stores East L.P., on the plaintiff’s
claim that Wal-Mart was negligent in allowing a “child seat cart attachment” to be left in a
store area where Booth tripped over it, fell, and sustained various injuries. On appeal, the
plaintiff challenges (1) her lack of opportunity to testify before the district judge prior to the
entry of judgment, (2) the district court’s ruling that Wal-Mart was not negligent, and (3) the
adequacy of the representation she received from her trial attorney. We find no reversible
error in the record and affirm.
06-6129
Booth v. Wal-Mart Stores
FACTUAL AND PROCEDURAL BACKGROUND1
The record reflects that this case arose from injuries that Linda Booth suffered from
a fall in a Louisville Wal-Mart store. She was there with her daughter and grandson in
order to purchase luncheon meats at the deli counter. Booth had previously shopped at
the Wal-Mart store on numerous occasions and was on friendly speaking terms with a
number of the employees working behind the counter. Thus, while the plaintiff’s daughter
and grandchild moved to the end of the counter in order to taste various food samples,
Linda Booth exchanged pleasantries with the Wal-Mart workers. When one of the
individuals filling Booth’s order asked the plaintiff how she would like the ordered meat
sliced, Booth turned to her right and tripped over the protruding base of a child seat
attachment for a shopping cart that had been left there by another customer just a few
minutes earlier.
Two Wal-Mart employees submitted affidavits stating that this second customer had
approached the deli counter with a small child after the plaintiff had already placed her
order. The child “was playing with a child seat cart attachment,” thus prompting the child’s
mother to remove the seat attachment from the shopping cart and leave “the area . . . but
abandon[ ] the child seat cart attachment.” According to the affiants, the cart attachment,
which resembled a bench on a wheeled platform onto which a regular shopping cart could
1
Neither party has filed a joint appendix with this court. The factual background for the appeal is thus
taken from inform ation in the com plaint, affidavits filed with the district court, answers to interrogatories, and
the district court’s m em orandum opinion.
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also be attached, “could not have been abandoned by the customer more than a minute
or so before” Booth tripped and fell over it.
When she fell, the plaintiff “suffered injuries to her mouth, teeth, right shoulder
(rotator cuff tear), right knee, requiring surgery, abrasions and cuts on both feet and a
severely bruised tailbone.” Although the plaintiff had not tallied the medical expenses that
had been incurred nor the wages that had been lost as a result of the fall, she calculated
that she was entitled to $200,000 for “[p]ast, present and future pain and suffering.” When
Wal-Mart refused to accede to her claims, Booth filed suit in Kentucky state court, alleging
that the plaintiff’s fall was occasioned by the defendant’s negligence in causing “an
unreasonably dangerous condition with respect to its business invitees.” Linda Booth’s
husband, Ernest, further claimed a loss of consortium as a direct and proximate result of
his wife’s injuries.
Relying on the complete diversity of citizenship of the parties, Wal-Mart removed the
matter to federal court and eventually filed a motion for summary judgment in its favor. At
the conclusion of a reasonable discovery period, the district court granted the defendant’s
motion, concluding that the abandoned cart attachment constituted an open and obvious
hazard of which Booth should have been aware. Consequently, ruled the court, Wal-Mart
had no “legal duty to protect an invitee from an imminent accident of h[er] own causing.”
The district court thus dismissed the plaintiff’s complaint with prejudice.
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Booth v. Wal-Mart Stores
DISCUSSION
1. Lack of Opportunity to Testify
In her pro se brief, Booth first contends that she has been prejudiced because she
“was not given the opportunity to state the facts before the court.” The plaintiff’s complaint
was, however, dismissed at the summary judgment stage prior to trial. Consequently,
there was no evidentiary hearing in this case and, thus, no opportunity to present live
testimony. Moreover, Booth was deposed during the discovery process and, in her
deposition testimony, was afforded the opportunity to explain both her version of the facts
and her reasons why she believed she was entitled to monetary damages from the
defendant.
2. Allegations of Defendant’s Negligence
The district court could properly grant summary judgment where “the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits,
if any, show that there is no genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.” FED . R. CIV. P. 56(c). A genuine issue of
material fact exists only when, assuming the truth of the non-moving party’s evidence and
construing all inferences from that evidence in the light most favorable to the non-moving
party, there is sufficient evidence for a trier of fact to find for that party. A non-moving party
cannot withstand summary judgment, however, by introduction of a “mere scintilla” of
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evidence in its favor. See Ciminillo v. Streicher, 434 F.3d 461, 464 (6th Cir. 2006). In this
case, the district court assumed the truth of all facts alleged by Linda Booth but still
concluded that, as a matter of law, the plaintiff could not recover from Wal-Mart on a theory
of negligence because the defendant owed no duty to Booth to protect her from, or warn
her of, an open and obvious hazard.
In exercising diversity jurisdiction, the district court was required to “apply state law
in accordance with the then controlling decision of the highest state court.” Bailey Farms,
Inc. v. NOR-AM Chem. Co., 27 F.3d 188, 191 (6th Cir. 1994). Under common-law tort
principles recognized in the Commonwealth of Kentucky:
[A] business owner has an affirmative duty to exercise reasonable care to
inspect for hazardous conditions. The occupier must not only use care not
to injure the visitor by negligent activities, and warn him of hidden dangers
known to the occupier, but he must also act reasonably to inspect the
premises to discover possible dangerous conditions of which he does not
know, and take reasonable precautions to protect the invitee from dangers
which are foreseeable from the arrangement or use of the property.
Lanier v. Wal-Mart Stores, Inc., 99 S.W.3d 431, 433 (Ky. 2003). A store owner does not,
however, become “an insurer against all accidents on the premises. The proprietor is guilty
of negligence only if he fails to use reasonable care under the circumstances to discover
the foreseeable dangerous condition and to correct it or to warn customers of its
existence.” Id. at 437. Exercise of such reasonable care, however, “does not ordinarily
require precaution or even warning against dangers that are known to the visitor or so
obvious to him that he may be expected to discover them.” Bonn v. Sears, Roebuck & Co.,
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440 S.W.2d 526, 528 (Ky. 1969). In other words, “a possessor of business premises is not
liable for injuries suffered by another person due to an open and obvious condition on the
premises.” Johnson v. Lone Star Steakhouse & Saloon of Kentucky, Inc., 997 S.W.2d 490,
492 (Ky. App. 1999) (citing Corbin Motor Lodge v. Combs, 740 S.W.2d 944, 946 (Ky.
1987)).
In this case, the district judge determined that the danger of which Linda Booth
complains was both open and obvious and thus would be recognized by a person
“exercising ordinary perception, intelligence, and judgment.” Bonn, 440 S.W.2d at 529
(citing Restatement (Second) of Torts § 343A cmt. b (1965)). Booth contends, however,
that the danger posed by the cart attachment should not have been considered “obvious”
because she had no real opportunity to see and avoid the object as she turned around at
the deli counter. But, as the Restatement provides, a risk can be considered “obvious”
simply “because the risk is inherent in the nature of the activity itself.” Restatement
(Second) of Torts § 343A cmt. c (1965). To insist that stray shopping carts will not be
found in the aisles of a supermarket or large retail store like Wal-Mart is to ignore common
sense and experience.2 The presence of such a large object in the defendant’s store, even
if not seen initially by the plaintiff, must, therefore, be considered an open and obvious
hazard. Moreover, because such hazards are routinely left, both temporarily and more
2
Indeed, Linda Booth herself adm itted in her deposition (a deposition that apparently was not placed
before the district court, even though the defendant cites to it in its appellate brief), “I have m oved m any a
basket[ ] around – out of m y way in that store.” Deposition of Linda Booth, February 24, 2006, p. 85.
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Booth v. Wal-Mart Stores
permanently, by customers in the aisles and other portions of stores, the defendant cannot
be faulted for not immediately removing the abandoned cart attachment from area around
the deli counter.
In short, the accident suffered by Booth was unfortunate, costly, inconvenient, and
painful. Nevertheless, under established Kentucky tort principles, Wal-Mart had no duty
to remove an obvious hazard when, according to uncontradicted evidence, the offending
apparatus was left in an open area of the store no more “than a minute or so before the
accident.” The district court thus did not err in determining that Wal-Mart was not negligent
in this instance.
3. Allegation of Error by Counsel
Finally, the plaintiff also insists that her legal counsel did not provide adequate
representation because “he did not give me the opportunity to speak before the judge and
I was not notified of hearing proceedings until they had already been conducted.” Claims
of legal malpractice do not, however, alter the fact that the defendant was not legally liable
to the plaintiff in negligence. Moreover, there are other, more appropriate alternatives for
the airing of grievances against her legal counsel.
CONCLUSION
For the reasons set out above, we conclude that the district court properly held that
the cart in question constituted an obvious risk, such that the defendant had no legal duty
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to warn Booth of its existence or to remove the hazard from the area immediately.
Summary judgment in favor of the defendant was thus properly entered in this case. As
also noted, Booth’s other allegations of error are without merit or are better addressed in
other contexts. We therefore AFFIRM the judgment of the district court.
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