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Brown v. Banks Grocery Co.

United States District Court, W.D. Kentucky, Paducah Division

November 10, 2014



THOMAS B. RUSSELL, Senior District Judge.

This matter comes before the Court upon Plaintiff Sandra Marie Brown's Motion to Alter or Amend Judgment. (Docket No. 61.) Defendant Banks Grocery Company ("Banks") has responded, (Docket No. 62), and Brown has replied, (Docket No. 63). Fully briefed, this matter is ripe for adjudication. For the reasons that follow, Brown's Motion to Alter or Amend Judgment will be GRANTED.

Factual Background

Brown's claim arises from a slip and fall she suffered on August 29, 2010. At approximately four o'clock in the afternoon, Brown decided to go grocery shopping at SuperValu Foods #3 ("SuperValu"), located in Paducah, Kentucky and owned by Banks. During her drive to the store, the weather became rainy: "a little more than a sprinkle, " but not enough to necessitate windshield wipers. (Docket No. 28-2 at 44-45.)

Wearing flip-flop sandals, Brown walked across the wet parking lot to the store's entrance. She passed through SuperValu's first set of automatic sliding glass doors, which opened onto a foyer consisting of nearly seventeen feet of carpet. She proceeded across the foyer to a second set of automatic doors, which opened onto the tile floor of the grocery area. As she stepped off the carpet onto the tile, the bottom of her flip-flop, still wet with rain, encountered the dry tile; she slipped and fell onto her left side, injuring her leg, arm, him, and lower back. Brown, a long-time patron of the store, contends that a rug was typically placed in the area where she fell. She does not claim that the water causing her accident was within SuperValu's control; rather, she testified that the moisture had already accumulated on her flipflops when she entered the store.

Brown's safety expert, Dr. George V. Nichols, noted that the floor was safe under dry conditions. ( See Docket No. 28-8 at 20 ("If it were dry and no moisture present, I'd have no reason to suspect that the slipperiness of the floor would have been increased.").) However, Dr. Nichols offered a two-pronged criticism of SuperValu. First, he opined that SuperValu should have provided additional carpeting on the date of the accident. He also concluded that SuperValu failed to adequately warn Brown of the potentially slippery conditions caused by the rain.

Greg Greene, the store's manager, testified that on the date of Brown's accident, SuperValu employees placed wet floor signs at the entrance, "where the flooring transitions from carpet to tile." (Docket No. 33-1 at 6.) However, there is no indication that such signs were placed in the entryway until after Brown's fall. Greene also explained that twice each year, Banks hires a cleaning company to strip, clean, and wax the tile floors. He noted that twice weekly, employees buff the store's floors.

In its Memorandum Opinion and Order granting Banks' Motion for Summary Judgment, the Court concluded that SuperValu did not breach a duty to Brown by failing to either provide additional carpeting or to warn of the risks attendant to walking on the floor wearing raindampened shoes. The Court noted that Brown's own expert testified that the floor, both dry and clean, presented no dangerous condition until Brown's sandals struck it. The Court concluded that the risks inherent in walking with wet shoes onto an otherwise dry, hard surface are open and obvious, precluding SuperValu's need to warn of such conditions.

Brown now submits that the Court should alter its judgment in light of newly discovered evidence. According to Brown, the day before the Court granted Banks' Motion for Summary Judgment, Banks delivered its Supplemental Answers to Plaintiff's Interrogatory 15. This Interrogatory directed:

If Banks Grocery has ever been a party to any lawsuit, state the name of each case, its involvement in the case, where the case was filed, the outcome of the case, the approximate date the case was filed and the case number if available. As part of your answer to this interrogatory, please specify whether Banks Grocery has ever had a claim made against it for any personal injury for which no lawsuit was filed.

(Docket No. 61-1 at 2.) In response, Banks produced two spreadsheets, the first listing all claims against it and the second describing the events from which such claims arose. Brown points to Spreadsheets 2.3 and 2.4, which indicate six personal injury insurance claims resulting from falls that occurred prior to Brown's accident. The spreadsheet entries for three such dates indicate rainy weather on the date of the incident.

Legal Standard

"District courts have inherent power to reconsider interlocutory orders and reopen any part of a case before entry of a final judgment." In re Saffady, 524 F.3d 799, 803 (6th Cir. 2008). "A district court may modify, or even rescind, such interlocutory orders." Mallory v. Eyrich, 922 F.2d 1273, 1282 (6th Cir. 1991).

The Sixth Circuit and its lower courts have consistently held that a Rule 59 motion should not be used either to reargue a case on the merits or to reargue issues already presented, see Whitehead v. Bowen, 301 F.Appx. 484, 489 (6th Cir. 2008) (citing Sault Ste. Marie Tribe of Chippewa Indians v. Engler, 146 F.3d 367, 374 (6th Cir. 1998)), or otherwise to "merely restyle or rehash the initial issues, " Derby City Capital, LLC v. Trinity HR Servs., 949 F.Supp.2d 712, 746 (W.D. Ky. 2013) (quoting White v. Hitachi, Ltd., 2008 WL 782565, at *1 (E.D. Tenn. Mar. 20, 2008)). Instead, "[w]here a party views the law in a light contrary to that of this Court, its proper ...

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