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Summary Judgment Not Appropriate in Slip and Fall Case without Absence of Genuine Issue of Material Fact

Scarberry v. Target Corp.
No. 5:12-CV-57 (U.S. District Court of the Northern District of West Virginia July 1, 2013)

by Anna C. Horevay, Summer Associate
Semmes, Bowen & Semmes (

In Scarberry v. Target Corp., the U.S. District Court for the Northern District of West Virginia considered whether summary judgment under FED. R. CIV. P. 56(c) was appropriate in a contested slip and fall case. As Target could not demonstrate the absence of a genuine issue of material fact, Chief Judge Bailey found that the numerous disputed issues between the parties precluded the granting of summary judgment.

Plaintiffs Marj and Samuel Scarberry entered Defendant’s Target store in Highlands, Ohio County, West Virginia. While inside the store, Ms. Scarberry fell on a clear liquid. As a result of falling, Ms. Scarberry alleged injuries to her neck, shoulder, and back. Mr. Scarberry also asserted a loss of consortium claim. Plaintiffs alleged that Target failed to maintain, inspect and/or adequately clean the walkway floor surface where Ms. Scarberry sustained her slip and fall.

FED. R. CIV. P. 56(c) provides that summary judgment is appropriate when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. A genuine issue exists if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Target claimed that it was entitled to summary judgment because the undisputed facts were legally insufficient to establish a prima facie case of negligence as there was no evidence that Target had actual knowledge or the opportunity to discover the alleged clear liquid on which Ms. Scarberry slipped.

According to Target, its employees are trained in spill detection and cleanup. Three (3) Target employees also testified during a deposition that they did not observe anything on the floor fifteen (15) to forty (40) minutes before Ms. Scarberry’s fall. Target’s safety expert found that floor inspections by employees were conducted at appropriate intervals as well. Plaintiffs claimed otherwise: according to one (1) Target employee, he was not completing his duties of surveying his assigned section. Further, Plaintiffs claimed that there was an increased opportunity for spilled beverages by Target’s operation of a Starbucks coffee shop inside the store.

The District Court found, based on the allegations of both parties, there were numerous genuine disputes of material fact that precluded the granting of summary judgment. Indeed, the parties even disputed when Target employees inspected the area prior to Ms. Scarberry’s fall, which could lead a reasonable juror to find for Plaintiffs that Target had actual or constructive knowledge of a foreign substance that caused Ms. Scarberry’s fall. Based on the disagreement among the parties, the District Court denied Target’s motion for summary judgment.