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Ensenbach v. Wal-Mart Stores, Inc.

United States District Court, D. Minnesota

July 26, 2019

Cheryl Ensenbach, Plaintiff,
Wal-Mart Stores, Inc., Defendant.




          DAVID S. DOTY, JUDGE

         This 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.


         This 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.[1] Ensenbach Dep. at 19:5-8.

         December 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.[2] Id. at 80:22-81:1.

         After 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.

         Instead, 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.

         Ensenbach 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.[3] 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.[4] 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.

         Ensenbach 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.

         About 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.

         On 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. ...

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