United States District Court, D. Minnesota
KATHLEEN K. CURTIS, ESQ. AND TEWKSBURY & KERFELD, PA,
COUNSEL FOR PLAINTIFF.
BRANDLEY R. PROWANT, ESQ. AND LARSON KING LLP, COUNSEL FOR
S. DOTY, JUDGE
matter is before the court upon the motion for summary
judgment by defendant Wal-Mart Stores, Inc. Based on a review
of the file, record, and proceedings herein, and for the
following reasons, the court grants the motion.
negligence dispute arises out of plaintiff Cheryl
Ensenbach's December 26, 2015, slip-and-fall incident at
the Wal-Mart store in Fridley, Minnesota (the Store). On
December 26, 2015, the Store opened for business at 6:00 a.m.
Ball Dep. at 18:20-23. Snow fell that morning before the
Store opened and accumulated in the parking
area. Ensenbach Dep. at 19:5-8.
26 is a busy shopping day at the Store. Ball Dep. at
18:20-23. The Store estimates that it had between 8, 000 to
10, 000 customers on December 26, 2015. Id. at
an overnight snow fall of more than an inch, the Store's
snow-removal contractor at that time, Dan's Professional
Snow Removal (Dan's), typically started plowing the
Store's parking area before the Store opened, and would
finish depending on snow accumulation. Id. at
27:18-28:3. The Store required Dan's to prioritize, among
other things, snow removal in the main drive, drive aisles,
sidewalks, and other areas of heavy pedestrian traffic.
Curtis Decl. Ex. 4 at 1. When the Store was particularly
busy, such as on December 26, Dan's plowed the parking
area's main aisles, but not necessarily the individual
parking spots because the spots were in near-constant use.
Ball Dep. at 27:1-17. Dan's typically did not rope off or
isolate and plow whole areas of the parking area because of
high demand for the parking spaces. Id. at 28:4-17.
On the day in question, the parking spaces where Ensenbach
fell were in constant use, thus, the snow closest to the
parked cars could not be plowed. Id. at 62:2-7.
on busy days like December 26, Dan's continuously plowed
the parking area to remove additional snow accumulation and
to keep the main aisles clear of snow. Id. at
27:5-17; 28:18-21. Dan's also occasionally used shovels
to clear portions of the parking area, particularly around
the cart-corral areas. Id. at 28:22-29:5. Dan's
would move plowed snow to the far corners of the parking
area. Id. at 25:17-22. In addition, Dan's
typically applied salt before snow fall and returned to apply
salt and to scrape as needed. Id. at 24:8-17. On the
day of the incident, Dan's started plowing the
Store's parking area at approximately 8:00 a.m.
Id. at 57:12-58:15; Curtis Decl. Ex. 3 at 4.
arrived at the Store at approximately 10:45 a.m., accompanied
by an eight-year old relative, and parked in aisle seven of
the parking area. Ensenbach Dep. at 16:12-17; Brandt Decl.
Ex. E at 1. By the time Ensenbach arrived at the Store,
Dan's had plowed a pathway in the middle of aisle seven
and had plowed the entirety of the main pedestrian cross-walk
to the Store's entrance. Brandt Decl. Ex. E at 2.
Dan's had not removed all the snow in the parking spaces
to the left and right of aisle seven given the number of cars
in the parking area, and at 11:22 a.m., Dan's was still
actively plowing and salting. Id. at 9-10.
exited the Store at approximately 11:25 a.m. using the plowed
pedestrian cross-walk. Id. at 4. When Ensenbach
entered aisle seven, she initially walked in the middle
portion of the aisle, which had been plowed providing an
exposed asphalt pathway. Id. at 5; see also
Ensenbach Dep. at 20:15-19. She moved to the right, however,
to walk in the unplowed portion of the aisle, adjacent to the
individual parking spaces, to avoid cars moving through the
aisle. Ensenbach Dep. at 23:1-6.
halfway through the aisle, Ensenbach slipped and fell,
injuring her left knee. Id. at 23:17-18; 25:10-11.
She required surgery to replace her ACL and MCL and
post-operative physical therapy. Id. at 27:9-15.
November 22, 2017, Ensenbach commenced this negligence action
in Hennepin County District Court. She alleges that the Store
did not properly maintain, inspect, and warn her with respect
to the parking area conditions. Compl. ...