United States District Court, S.D. West Virginia, Charleston
DARLENE C. MARTIN and JAMES MARTIN, Plaintiffs,
BELK INC. and DOE 1, Defendants.
MEMORANDUM OPINION AND ORDER
T. COPENHAVER, JR. SENIOR UNITED STATES DISTRICT JUDGE
is the motion for summary judgment filed by defendant Belk
Inc. (“Belk”) on May 17, 2019.
about May 23, 2016, plaintiff Darlene C. Martin, a resident
of West Virginia, was trying on shoes at the Wood County,
West Virginia location of defendant Belk, a corporation with
its principal place of business in North Carolina. Compl.,
ECF No. 2-2, ¶¶ 1-3, 10, 12. A Belk employee, who
is named as Doe 1 in the complaint and is later identified as
Ms. Carmen Eddy, was helping Ms. Martin try on shoes on the
date in question. Id. ¶ 12, Pls.' Resp.,
ECF No. 22, at 3.
trying on a pair of high-heeled shoes, Ms. Martin asked Ms.
Eddy about the location of a mirror she might use, and Ms.
Eddy directed her to a mirror in front of the cash register
some distance away from where she was standing. See Martin
Dep., ECF No. 20-1, at p. 20; Eddy Dep., ECF No. 22-1, at p.
13. As she was looking for the mirror to which Ms. Eddy
directed her, Ms. Martin fell to the ground. Martin Dep., ECF
No. 20-1, at p. 20-21; see Video of Fall, ECF No. 20-2
(showing the video of Ms. Martin falling to the floor). Ms.
Martin asserts that “there was a mirror behind the
chair where I sat down” and that she, and
“apparently, ” Ms. Eddy, did not know about it.
Martin Dep., ECF No. 20-1, at p. 41.
Eddy acknowledged that there were three portable mirrors in
the store but that she did not know where each of them was
located, and that she had no reason to dispute Ms.
Martin's statement that she saw a mirror behind where she
was originally seated. Eddy Dep., ECF No. 22-1, at p. 12, 36.
Ms. Eddy also admitted that she could not recall whether she
offered to assist Ms. Martin try on shoes on the date in
question but that it was part of Belk's policy to assist
customers in trying on shoes and to make portable mirrors
available to them. Id. at 33-34.
Ms. Martin began to walk, she was looking for the mirror and
not at the floor, and she stated that she did not see
anything on the floor that was a hazard or tripping danger.
Martin Dep., ECF. No. 20-1, p. 37, 40. After she fell, she
noticed, for the first time, that there were wrinkles in the
carpet, although she could not recall how deep the wrinkles
were or how many there were. Id. at 38. Ms. Martin
also acknowledged that there was nothing covering the
wrinkles or hiding them from view. Id. Ms. Martin
believes that the “shoe, possibly the heel, caught on
the wrinkle, ” causing her to fall. Id. at 40.
contend in their complaint that Ms. Eddy should have known
there was a nearby mirror that Ms. Martin could have used
which would have prevented her from having to walk over the
wrinkled carpet, but Ms. Eddy directed Ms. Martin to walk to
a more distant mirror “across” the carpet that
she “knew or should have known . . . contained an
unknown and unseen dangerous condition.” Compl., ECF
No. 2-2, ¶¶ 16-17. Plaintiffs allege that
“Defendants knew or should have known of the hazard
that created a dangerous condition for Mrs. Martin and
neglected to give adequate notice of its presence.”
Id. ¶ 22. The complaint further states that
“Belk was . . . negligent, careless and/or reckless in
hiring, failing to properly supervise and failing to
adequately monitor the activities of Doe 1, and was further
negligent, careless and/or reckless in failing to have and/or
enforce adequate policies, procedures and guidelines to
prevent the above-described negligent activities.”
Id. ¶ 24. Belk is also alleged to be
vicariously liable for the acts of Doe 1 as her employer.
Id. ¶ 9.
seek compensatory and future damages for the harms caused to
Ms. Martin. Id. ¶¶ 28-29. They further
seek damages for James Martin, Ms. Martin's husband, who
suffered the loss of care, companionship and service of his
wife and “will continue to suffer the loss of care,
companionship and services of his wife.” Id.
¶¶ 30-31. Plaintiffs also request punitive damages.
Id. at 5-6.
initiated this action in the Circuit Court of Wood County,
West Virginia on May 17, 2018. Belk removed the matter to
this court on June 22, 2018 pursuant to 28 U.S.C. §
1332. After conducting discovery, Belk filed its motion for
summary judgment, to which the plaintiffs have responded, and
Belk has filed its reply.
contends that it is entitled to summary judgment on
plaintiffs' negligence claim inasmuch as Ms. Martin
“cannot identify the cause of her fall and link it to
an act or omission of Defendant.” Belk's Mem. Supp.
Mot. Summary J. (“Belk's Mem.”), ECF No. 20,
at 1. Belk further asserts that “the only condition
identified by Plaintiff as potentially causing her fall,
wrinkling in the carpet, was an open and obvious
Standard of Review
is entitled to summary judgment “if the pleadings, the
discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as
a matter of law.” Fed.R.Civ.P. 56(c). Material facts
are those necessary to establish the elements of a
party's cause of action. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986).
genuine issue of material fact exists if, in viewing the
record and all reasonable inferences drawn therefrom in a
light most favorable to the non-moving party, a reasonable
fact-finder could return a verdict for the non-movant.
Id. The moving party has the burden of showing --
“that is, pointing out to the district court -- that
there is an absence of evidence to support the nonmoving
party's case.” Celotex Corp. v. Catrett,477 U.S. 317, 325 (1986). If the movant satisfies this
burden, then the non-movant must set forth specific facts as
would be admissible in evidence that demonstrate the
existence of a genuine issue of fact for trial. Fed.R.Civ.P.
56(c); Id. at 322-23. A party is entitled ...