                          IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL

                                 PITCHER V. WAL-MART STORES


  NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
 AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).


                    TONYA PITCHER AND ROBERT PITCHER, APPELLANTS,
                                           V.
                WAL-MART STORES, INC., A DELAWARE CORPORATION, APPELLEE.


                           Filed November 10, 2014.      No. A-13-997.


       Appeal from the District Court for Lancaster County: STEPHANIE F. STACY, Judge.
Affirmed.
       James L. Haszard, of McHenry, Haszard, Roth, Hupp, Burkholder & Blomenberg, P.C.,
L.L.O., for appellants.
       George E. Martin III and Ryan D. Wilkins, of Baird Holm, L.L.P., for appellee.


       MOORE, Chief Judge, and IRWIN and PIRTLE, Judges.
       MOORE, Chief Judge.
        Tonya Pitcher and Robert Pitcher brought a negligence action against Wal-Mart Stores,
Inc. (Wal-Mart), for personal injuries Tonya suffered after she slipped and fell inside a Wal-Mart
store in Lincoln, Nebraska. The district court for Lancaster County granted Wal-Mart’s motion
for summary judgment. The Pitchers appeal, arguing that there was an issue of fact as to whether
Wal-Mart created the wet floor on which Tonya slipped or whether Wal-Mart took reasonable
care to discover the wet floor. Finding no merit to the Pitchers’ arguments, we affirm the district
court’s order.
                                  FACTUAL BACKGROUND
        On April 17, 2011, Tonya, Robert, and two of their children were shopping in a
Wal-Mart store located in Lincoln. While in the store, Tonya took her son into the restroom
located at the front of the store. After leaving the restroom, Tonya slipped and fell on the store’s
floor. She hit her left knee against the floor and suffered a broken kneecap.



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         The Pitchers brought a premises liability action against Wal-Mart. In their operative
complaint, they alleged that Tonya slipped and fell in Wal-Mart due to water or another slippery
substance on the floor. The Pitchers asserted that Wal-Mart knew of the condition of the floor or
that Wal-Mart, by the exercise of reasonable care, would have discovered the condition. The
Pitchers further alleged that Tonya suffered injuries which caused physical pain and mental
suffering, loss of enjoyment of life, inconvenience, and past and future disability. Finally, Robert
claimed that he suffered a loss of consortium as a result of Tonya’s injuries.
         Following discovery, Wal-Mart moved for summary judgment. Wal-Mart argued that
there was no evidence to establish how or when the condition on the floor was created which
caused Tonya to slip. Wal-Mart submitted evidence in support of its position, including excerpts
from depositions of Tonya, Robert, and Jacqueline Bauer, an assistant manager at Wal-Mart. In
addition, Wal-Mart submitted video surveillance footage of the areas related to Tonya’s fall.
         During her deposition, Tonya testified that she had taken their son to the restroom while
Robert and their daughter were going through the checkout with their merchandise. While
walking to the restroom with their son, Tonya did not notice any water on the ground. She
testified that her feet began to slip when she left the restroom. Tonya believed that she was
slipping for 30 seconds to a minute before she fell down. Tonya estimated that 10 minutes had
passed between the time she walked across the floor to get to the restroom and when she fell.
         Tonya testified that after she fell, she heard people around her discussing the cause of her
fall. She stated that another customer named “Shelly” claimed that there was water on the floor
leading out the door and that the water had caused the fall. Tonya also claimed that she heard
Robert tell Bauer, who responded to the incident, that she might want to clean up the water on
the floor before somebody else falls and gets hurt. Tonya did not personally observe any water
on the floor, but she testified that the emergency responders told her that her jeans were wet.
Tonya did not have any information that anyone from Wal-Mart was aware that water was on the
ground before she fell.
         Robert testified during his deposition that he and their daughter were sitting on a bench
near the restrooms for 5 or 6 minutes before Tonya fell. While he was sitting on the bench,
Robert did not observe any water spill onto the floor. After watching Tonya fall, Robert went
over and knelt beside her. While kneeling, he observed a trail of water on the floor,
approximately 6 inches wide, coming out of the area surrounding register No. 13 (Register 13).
He testified that the trail of water continued on the floor through the west exit. Robert did not
know how this water got onto the floor nor could he state whether anybody at Wal-Mart was
aware of the water on the floor before Tonya’s fall.
         Bauer responded to Tonya’s fall and completed an inspection of the nearby floor area.
During her deposition, Bauer testified that Tonya fell in one of the areas Wal-Mart refers to as an
“action alley.” An action alley is a big walk space where there is a substantial amount of
customer traffic. Bauer testified that during her inspection of the area, she found some drops of
water on the floor that led back to Register 13. She estimated there was “maybe a fourth of a cup
[of water] total” on the floor. Bauer also added that another Wal-Mart associate informed her that
a customer had purchased refillable water bottles at Register 13 prior to Tonya’s fall. Bauer
spoke with the cashier at Register 13, who informed her that he did not observe any water
spillage. Bauer testified that she did not discover any water puddles at Register 13.


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        Bauer explained that Wal-Mart offers customers the opportunity to purchase water from a
Culligan machine in the back of the grocery section of the store. At this station, customers are
able to fill bottles with water. Customers are permitted to refill their own bottles or purchase
bottles to fill in the store. The nature of the cap on the bottles varies depending on whether
customers are purchasing a Wal-Mart bottle or refilling their own bottles. At checkout, the
Wal-Mart cashiers are able to type a code into the register to record a customer’s purchase of the
water. Prior to Tonya’s fall, Bauer was not aware of any bottles leaking. Wal-Mart’s system for
selling this water has remained the same following Tonya’s incident.
        Bauer also testified that Wal-Mart policy is to have its associates conduct regular “safety
sweeps” of store aisles. These safety sweeps involve pushing dry brooms while walking down
aisles and looking for anything hazardous on the floor. Although maintenance associates
typically perform the safety sweeps, Bauer testified that all employees are supposed to keep their
eyes open for potential hazards on the store floor. Bauer also stated that Wal-Mart has weekly
safety meetings which occur each Monday at 1:30 p.m.
        Video footage from Wal-Mart’s surveillance system was also introduced into evidence.
The video contains footage from three different vantage points: an eastward view of the action
alley in which Tonya fell, a westward view of the same action alley, and an overhead view of
Register 13. The footage from the cameras facing the action alley shows the aisle before Tonya’s
fall, Tonya’s falling, and the subsequent medical care she received. The footage from the camera
above Register 13 depicts the cashier scanning some refillable water containers from a couple’s
shopping cart and entering a code into the cash register. The footage of the action alley also
shows the couple who purchased the water exiting the store. Approximately 30 seconds before
Tonya fell, this couple walked on the same path as the trail of water droplets Bauer discovered
after the incident.
        On October 31, 2013, the district court entered an order granting Wal-Mart’s motion. The
court concluded that the Pitchers had not adduced the evidence necessary to show that Wal-Mart
created, knew about, or reasonably should have known about the presence of the water droplets
upon which Tonya had slipped.
        The Pitchers appeal.
                                  ASSIGNMENTS OF ERROR
      Pitcher assigns that the court erred in (1) sustaining Wal-Mart’s motion for summary
judgment, (2) determining that no genuine issue of material fact existed, and (3) determining that
Wal-Mart was entitled to judgment as a matter of law.
                                   STANDARD OF REVIEW
        An appellate court will affirm a lower court’s grant of summary judgment if the pleadings
and admitted evidence show that there is no genuine issue as to any material facts or as to the
ultimate inferences that may be drawn from the facts and that the moving party is entitled to
judgment as a matter of law. Payne v. Nebraska Dept. of Corr. Servs., 288 Neb. 330, 848
N.W.2d 597 (2014). In reviewing a summary judgment, an appellate court views the evidence in
the light most favorable to the party against whom the judgment was granted, and gives that




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party the benefit of all reasonable inferences deducible from the evidence. Latzel v. Bartek, 288
Neb. 1, 846 N.W.2d 153 (2014).
                                            ANALYSIS
        Owners and occupiers of land are not insurers of their premises, and they have a duty
only to exercise reasonable care in the maintenance of their premises. See Heins v. Webster
County, 250 Neb. 750, 552 N.W.2d 51 (1996). In premises liability cases, the owner or occupier
is subject to liability if the lawful visitor proves (1) the owner or occupier either created the
condition, knew of the condition, or by the exercise of reasonable care would have discovered
the condition; (2) the owner or occupier should have realized the condition involved an
unreasonable risk of harm to the lawful visitor; (3) the defendant should have expected that a
lawful visitor such as the plaintiff either (a) would not discover or realize the danger or (b) would
fail to protect himself or herself against the danger; (4) the owner or occupier failed to use
reasonable care to protect the lawful visitor against the danger; and (5) the condition was a
proximate cause of damage to the lawful visitor. Aguallo v. City of Scottsbluff, 267 Neb. 801,
678 N.W.2d 82 (2004); Herrera v. Fleming Cos., 265 Neb. 118, 655 N.W.2d 378 (2003).
        The Pitchers argue summary judgment is improper in this case because they claim there
are genuine issues of fact as to whether Wal-Mart created the slippery condition on the floor
which caused Tonya’s fall. The Pitchers also assert that there is an issue of fact as to whether
Wal-Mart took reasonable care to discover the condition on the floor.
        The Pitchers claim that Wal-Mart’s method of selling refillable water in its store creates a
hazardous situation in the store. They point to the fact that Wal-Mart allows unsupervised
customers to fill and cap the bottles and does not have its employees check the bottles for
leakages during the checkout process. The Pitchers cite to the Nebraska Supreme Court’s
decision in Chelberg v. Guitars & Cadillacs, 253 Neb. 830, 572 N.W.2d 356 (1998), to support
their claim. In Chelberg, a patron of a nightclub brought a personal injury action against the
nightclub after slipping and falling near the nightclub’s beer trough which was located near the
dance floor. The Nebraska Supreme Court reversed this court’s decision to affirm the district
court’s grant of summary judgment against the patron. The Supreme Court held that there was a
material issue of fact as to whether the nightclub created a dangerous condition by utilizing a
beer trough from which beer bottles, immersed in ice, would be taken and sold to patrons. The
court noted that the evidence showed that the nightclub had allowed customers to take bottles
from the trough themselves without first having the bottles wiped and that nightclub employees
also removed bottles from the trough without wiping them. Employees also acknowledged that
the beer trough would seep and the bottles would sweat. Based on that evidence, the court
concluded that a finder of fact could infer that the nightclub created the dangerous condition
through the actions of its employees.
        We conclude that the evidence in this case is dissimilar to that in Chelberg. In this case,
the location of the water equipment is not near the location where Pitcher’s fall occurred.
Further, there is no evidence that Wal-Mart’s system of selling refillable water created the actual
condition on the floor at the time of Pitcher’s fall.
        The present case is similar to Derr v. Columbus Convention Ctr., 258 Neb. 537, 604
N.W.2d 414 (2000). In that case, a hotel guest slipped on ice that had been spilled on stairs


                                                -4-
located near an ice machine that the hotel provided for guest use. In response to the hotel’s
motion for summary judgment, the guest was not able to provide evidence that the hotel
employees were actively involved in spilling the ice or that the hotel was aware of the spill. The
Nebraska Supreme Court rejected this court’s determination that the evidence could support the
conclusion that the hotel created a dangerous condition merely by placing an ice machine near
the foot of the stairs and not establishing a regular schedule for inspecting that area. Instead, the
Supreme Court concluded the hotel’s uncontroverted evidence, that its employees inspected the
area where the fall occurred several times a day, that its employees were trained to detect and
respond to hazardous conditions, and that there had been no previous similar accidents on hotel
premises, entitled the hotel to summary judgment. Similarly, based on the evidence presented in
this case, a finder of fact could not reasonably infer that Wal-Mart created the hazard which
caused Tonya’s injury. There was no evidence that leakage had ever occurred at this store as a
result of Wal-Mart’s water equipment or the system of allowing customers to refill containers.
There is simply nothing in the record to show that Wal-Mart or its employees caused the slippery
condition on the floor.
        We also conclude that there is no issue of fact as to whether Wal-Mart should have
known of the slippery condition of the floor. Neither Tonya nor Robert was able to testify to the
source of the clear liquid in which Tonya slipped, how long the liquid had been on the Wal-Mart
store floor before Tonya’s fall, or that anyone associated with Wal-Mart knew or should have
known of the clear liquid on the floor before the fall. There was no evidence that this liquid was
visible or had existed for a sufficient length of time for Wal-Mart to discover and remedy the
situation. Additionally, Wal-Mart presented evidence of its safety procedures which include
consistent safety sweeps. The video evidence shows that a couple purchased refillable water
from Register 13 shortly before Tonya’s fall. After passing through the cash register area, the
couple passed through the approximate area where Pitcher slipped and fell about 30 seconds
before the incident. Although the video gives a possible inference that the clear liquid on the
floor was spilled from this couple’s containers of water, there was not sufficient time for
Wal-Mart to discover the condition on the floor because Pitcher fell approximately 30 seconds
after the video showed that this couple passed through the action alley. Further, Wal-Mart
presented evidence that the cashier at Register 13 who handled the couple’s transaction did not
observe any leaking water. See Herrera v. Fleming Cos., 265 Neb. 118, 655 N.W.2d 378 (2003)
(grocery store was entitled to summary judgment after establishing by uncontroverted evidence
that no one knew how long the water had been on the floor and there was no evidence or
reasonable inference that the grocery store created the condition, knew of the condition, or
should have known of the condition).
        We conclude the Pitchers failed to adduce any evidence which would permit a fact finder
to infer that Wal-Mart was liable for not having discovered the clear liquid on the floor and
remedying the condition prior to Tonya’s fall. The district court was correct in granting summary
judgment in favor of Wal-Mart.




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                                        CONCLUSION
        The Pitchers failed to produce any evidence to establish that Wal-Mart created, knew
about, or should have known about the clear liquid on the floor prior to Tonya’s fall. We affirm
the district court’s order granting Wal-Mart summary judgment.
                                                                                      AFFIRMED.




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