Hixson v Walmart, Inc.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
AMBER HIXSON,
Plaintiff,
v.
WALMART, INC.,
Defendant.
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Case no. 1:24-cv-00076-SNLJ
MEMORANDUM AND ORDER
This matter is before the Court on defendant Walmart, Inc.’s motion for summary
judgment. [Docs. 32-34]. The motion is fully briefed and ripe for disposition. [Docs.
40-43]. For the reasons stated below, the motion will be granted in part and denied in
part.
I. 	PROCEDURAL BACKGROUND
Plaintiff Amber Hixson filed this action alleging a claim for premises liability
against defendant Walmart, Inc. [Doc. 1]. Defendant filed an answer denying the
substance of plaintiff’s complaint and alleging 4 affirmative defenses. [Doc. 7].
Defendant now filed a motion for summary judgment alleging that plaintiff cannot
establish all the necessary elements of her claim for premises liability; or, in the
alternative, that defendant is entitled to partial summary judgement on plaintiff’s
allegations that she suffered a TFCC tear and a shoulder injury. [Doc. 34]. Plaintiff
opposes defendant’s motion and alleges that a genuine issue of material fact exists as to
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whether defendant’s negligence caused plaintiff’s injuries. [Doc. 40].
II. 	FACTUAL BACKGROUND
The following facts are undisputed except where indicated1:
Dexter Walmart: The Walmart Supercenter in Dexter, Missouri (hereinafter
“Dexter Walmart”) is a retail store that sells general merchandise and grocery items.
[Doc. 41-1 at 09:24-10:08]. Customers of the Dexter Walmart are allowed to travel down
the store’s aisles to select merchandise and may bring items they select from the sales
floor to registers at the front of the store to make purchases. [Id. at 15:07-16:02]. The
Dexter Walmart has two separate areas with cash registers where customers can
checkout: a self-checkout and a cashier-assisted checkout section. [Doc. 35-2 – WM
Video 2(A)].
Checkout Aisle 1 is an aisle in the cashier-assisted checkout area of Dexter
Walmart. [Doc. 35-1 – WM Video 1(A); Doc. 35-2 – WM Video 2(A)]. The entrance to
Checkout Aisle 1 has a rack filled with magazines that are available for purchase. [Id.].
The entrance to Checkout Aisle 1 also has a cooler filled with drinks that are available for
purchase. [Id.]. Checkout Aisle 1 has a counter or merchandise shelf that runs the length
of the aisle that has items for purchase, like trading cards. [Id.]. Checkout Aisle 1 runs
1 Plaintiff’s response to defendant’s statement of uncontroverted material facts raises multiple
objections based upon a theory that defendant’s reference to allegations in the complaint, of
deposition testimony, and of entries in medical records are not in and of themselves material facts.
The Court overrules these objections. 	A summary judgment motion may be properly made in
reliance on the pleadings, depositions, answers to interrogatories, and admissions on file. 	See
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The nonmoving party must then go beyond
the pleadings and, by the use of affidavits, or by the depositions, answers to interrogatories, and
admissions on file, designate what specific facts exist to establish a genuine issue of material fact
for trial. Id.
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perpendicular to an aisle that runs across the front of the store and leads to the customer
service desk (or the “front aisle”). [Doc. 41-1 at 34:19-23; Doc. 35-1; Doc. 35-2].
Events of August 4, 2021: On August 4, 2021, plaintiff was accompanied by her
daughter and went to Dexter Walmart for her daughter to receive a physical evaluation
for the upcoming volleyball season at the medical clinic located inside the Dexter
Walmart. [Doc. 33-5 at 10:4-11]. Plaintiff had shopping to do, and her daughter sat
outside of the clinic on a bench facing Checkout Aisle 1. [Doc. 41-3 at 13:13-14:10].
Plaintiff shopped for a permanent marker and masking tape from the sales floor of the
Dexter Walmart before heading to the front of the store to purchase the items in the self-
checkout section. [Id. at 14:13-16:2]. As plaintiff was making her way to the self-
checkout section, Ms. Ashley Hunsaker, a Dexter Walmart employee, logged in at
Checkout Aisle 1 and announced that she could help someone on one. [Doc. 41-1 at
24:9-11].
When plaintiff heard Ms. Hunsaker announce that she was available to check out
customers, plaintiff walked from the self-checkout area to Checkout Aisle 1. [Doc. 41-1
at 24:06-25:24 and 38:16-22; Doc. 41-3 at 14:13-16:12]. When plaintiff reached the
entrance to Checkout Aisle 1, she slipped and fell backward. [Id.]. When plaintiff fell
backward, she slammed her head on the shelf of merchandise in Checkout Aisle 1 and
ultimately landed on her right arm and right wrist. [Id.]. Immediately after the fall,
plaintiff reported to Dexter Walmart employees that her wrist and elbow were hurting.
[Doc. 33-1; Doc. 41-3 at 20:25-21:10]. A customer incident report was completed.
[Doc. 33-1]. After the fall, Dexter Walmart employees wiped up the area with paper
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towels and Ms. Hunsaker determined plaintiff fell on a green grape. [Doc. 41-1 at 38:09-
38:22]. The Dexter Walmart sells green grapes every day. [Id. at 26:10-13].
Ms. Hunsaker was working at Dexter Walmart on August 4, 2021, as a department
manager. [Doc. 41-1 at 11:2-6; 19:9-15]. Ms. Hunsaker provided testimony about what
Dexter Walmart employees generally did at the Dexter Walmart location. [Id. at 21:17-
23:13]. Ms. Hunsaker testified that when Dexter Walmart employees open a closed cash
register to serve customers in the cashier-assisted checkout section of the store, they
ensure that the area they are working in is clean, tidy, actively usable. [Id. at 21:17-
23:13]. Ms. Hunsaker testified that when Dexter Walmart employees open a closed cash
register to serve customers as cashiers, the employees walk the area to make sure it is
safe. [Id.]. Ms. Hunsaker also testified that when Dexter Walmart employees are
working at registers in the cashier-assisted checkout section of the store, they perform
sweeps of the area where they are working by using a dustpan and broom to sweep the
area. [Id.]. Checkout Aisle 1 had paper towels at the conveyor belt attached to the
register that employees use to clean the conveyor belts. [Id. at 38:5-11].
On August 4, 2021, Ms. Hunsaker walked across the front aisle of the store and
passed the exit of Checkout Aisle 1, which is on the far side of the aisle from the
entrance. [Doc. 41-1 at 34:19-23; Doc. 35-1 at 11:59:57-12:00:47; Doc. 35-2 at
11:59:57-12:00:47]. While plaintiff contends that Ms. Hunsaker never looked down and
never observed the portion of the ground in Checkout Aisle 1 where plaintiff later fell,
the testimony of Ms. Hunsaker is that she did, in fact, look in the general direction down
the registers as she walked across the front aisle. [Doc. 41-1 at 34:15-35:6; 40:2-9].
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Other than the walk across the front aisle when she looked down the register lanes, Ms.
Hunsaker testified that she otherwise did not recall walking the area to see if there was
any debris or anything on the floor. [Doc. 41-1 at 22:13-15; 34:15-35:6; 40:2-9]. She did
testify that with Checkout Aisle 1 being a speedy check out, it’s generally pretty simple
to make sure that it was tidy before opening because there is only one tiny little space to
check. [Id. at 22:9-12].
In addition to Ms. Hunsaker’s testimony, plaintiff’s daughter testified that she did
not observe any debris or potential hazards in the area in front of her. [Doc. 33-5 at 17:2-
18:15]. Video surveillance shows plaintiff walking through Checkout Aisle 1, without
issue, less than 5 minutes before her slip and fall incident in Checkout Aisle 1. [Doc. 35-
1]. That same surveillance video shows 2 customers walking down Checkout Aisle 1,
without issue, less than a minute prior to plaintiff’s incident. [Id.]. Another camera
running video surveillance shows a third customer examining an item in his cart near the
entrance of Checkout Aisle 1 approximately 10 seconds before plaintiff enters the video
and falls. [Doc. 35-2].
Injuries: Prior to her fall at Dexter Walmart on August 4, 2021, plaintiff does not
recall ever having injured or experienced pain in the right elbow, right wrist, or her right
shoulder. [Doc. 41-4 at ¶9]. After attempting to manage the pain on her own, on August
6, 2021, plaintiff went to the emergency room at Southeast Health Center of Stoddard
County where she complained of right shoulder pain radiating into her hand following the
fall at the Dexter Walmart. [Doc. 41-5]. In the emergency room, plaintiff was diagnosed
with a closed fracture of the right radial head with mild intra-articular movement. [Id.].
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Plaintiff continued to seek treatment for her pain in her right elbow, right wrist, and right
shoulder. [Docs. 41-6, 41-7, 41-8, 41-9, 41-10]. The parties dispute whether the
shoulder pain and shoulder treatment after February 9, 2022, were related to plaintiff’s
fall at Dexter Walmart. [Doc. 33-7].
Defendant’s retained medical expert, Dr. Russ Cantrell, M.D., believes that
plaintiff sustained a broken right elbow as a result of the fall at the Dexter Walmart.
[Doc. 41-2 at 36:3-7]. Dr. Cantrell also believed that plaintiff initially did have a sprain
of her shoulder. [Id. at 36:8-14]. The parties dispute whether plaintiff’s treatment and
pain in her shoulder from February 9, 2022, to the present is related to her fall at the
Dexter Walmart.
Dr. Cantrell testified in his deposition that it was a possibility that a fall on an
outstretched arm can cause a TFCC tear. [Doc. 41-2 at 46:20-23]. While Dr. Cantrell
opined that to a reasonable degree of medical certainty that plaintiff’s TFCC tear was not
caused by the incident at Dexter Walmart on August 4, 2021 [Doc. 41-2 at 36:21-37:12;
37:17-38:11], he did agree that it was possible that plaintiff had a pre-existing
asymptomatic TFCC tear that the fall then made symptomatic. [Doc. 41-2 at 37:3-8;
47:3-9]. Plaintiff had an injection in the radiocarpal joint near the TFCC on or about
March 3, 2022. [Doc. 33-7]. The parties dispute whether plaintiff continues to have pain
in her right wrist, shoulder, and elbow.
As a result, plaintiff filed this complaint for damages against defendant for
premises liability on April 15, 2024. [Doc. 1 at ¶¶33-41].
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III. 	LEGAL STANDARD
Pursuant to Federal Rule of Civil Procedure 56(a), a district court may grant a
motion for summary judgment if all of the information before the court demonstrates that
“there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law.” Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464,
467 (1962); Fed. R. Civ. P. 56(a). The Court will view “all facts in the light most favorable
to the non-moving party and mak[e] all reasonable inference in [that party’s] favor.”
Schmidt v. Des Moines Pub. Sch., 655 F.3d 811, 819 (8th Cir. 2011). 	“[W]here the
nonmoving party will bear the burden of proof at trial on a dispositive issue…Rule 56(e)
permits a proper summary judgment motion to be opposed by any of the kinds of
evidentiary materials listed in Rule 56(c), except the mere pleadings themselves.” Celotex
Corp. v. Catrett, 477 U.S. 317, 324 (1986). 	The moving party need not negate the
nonmoving party’s claims by showing “the absence of a genuine issue of material fact.”
Id. at 325. Instead, “the burden on the moving party may be discharged by ‘showing’…that
there is an absence of evidence to support the nonmoving party’s case.” Id.
In response to the movant’s showing, the nonmoving party’s burden is to produce
specific facts demonstrating “’a genuine issue of material fact’ such that [its] claim should
proceed to trial.” 	Nitro Distrib., Inc. v. Alticor, Inc., 565 F.3d 417, 422 (8th Cir. 2009)
(quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)).
The nomoving party “’must do more than simply show that there is some metaphysical
doubt as to the material facts,’ and must come forward with ‘specific facts showing that
there is a genuine issue for trial.’” 	Torgerson v. City of Rochester, 643 F.3d 1031, 1042
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(8th Cir. 2011) (quoting Matsushita, 475 U.S. at 586-87)). “’[T]he mere existence of some
alleged factual dispute between the parties’” will not defeat an otherwise properly
supported motion for summary judgment. Quinn v. St. Louis Cnty., 653 F.3d 745, 751 (8th
Cir. 2011) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)).
In other words, in deciding “a motion for summary judgment, ‘facts must be viewed
in the light most favorable to the nonmoving party only if there is a “genuine” dispute as
to those facts.’” 	Ricci v. DeStefano, 557 U.S. 557, 586 (2009) (quoting Scott v. Harris,
550 U.S. 372, 380 (2007)). Otherwise, where the Court finds that “the record taken as a
whole could not lead a rational trier of fact to find for the non-moving party” – where this
is no “’genuine issue for trial’” – summary judgment is appropriate. Matsushita, 475 U.S.
at 587 (quoting First Nat’l Bank of Ariz. V. Cities Serv. Co., 391 U.S. 253, 289 (1968)).
IV. 	DISCUSSION
As previously stated, the complaint is based upon plaintiff’s claims against
defendant for premises liability. Defendant’s motion for summary judgment alleges two
separate issues: (1) whether defendant lacked knowledge of the alleged dangerous
condition; and, (2) whether plaintiff has failed to establish causation for the majority of
her alleged injuries.
A. Did defendant lack knowledge of the alleged dangerous condition?
To prevail in a slip and fall case, the plaintiff must prove: (1) a dangerous
condition existed on the defendant’s property which involved an unreasonable risk; (2)
the defendant knew or by using ordinary care should have known of the condition; (3) the
defendant failed to use ordinary care in removing or warning of the danger; and (4) the
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plaintiff was injured as a result. Phillips v. Drury Southwest, 524 S.W.3d 228, 230 (Mo.
App. E.D. 2017) (citing Rycraw v. White Castle Sys., Inc., 28 S.W.3d 495, 499 (Mo. App.
E.D. 2000)). Missouri follows the traditional rule that a plaintiff in a slip and fall must
establish that defendant had actual or constructive notice of a dangerous condition.
Fogelbach v. Wal-Mart Stores, Inc., 270 F.3d 696, 698 (8th Cir. 2001); see e.g., Hople v.
Wal-Mart Stores, 219 F.3d 823, 824 (8th Cir. 2000). Prior to 1989, a plaintiff had to
prove that a hazard had been present longer than twenty minutes to present a case on the
issue of constructive notice. Id. at 699; see Grant v. National Super Markets, Inc., 611
S.W.2d 357, 359 (Mo. App. E.D. 1980). However, in 1989 the Missouri Supreme Court
held that the length of time a hazard has been on the ground no longer is a conclusive
factor in determining whether a plaintiff has presented a submissible case on the issue of
constructive notice. Sheil v. T.G. & Y. Stores Co., 781 S.W.2d 778, 781 (Mo. banc 1989).
Under current Missouri law, “the inquiry of whether the danger existed long
enough that the store should have reasonably known of it (constructive notice) is made in
light of the fact that the store had notice that certain dangers arising through customer
involvement are likely to occur, and the store has a duty to anticipate them.” Fogelbach,
270 F.3d at 699 (quoting Martin v. Wal-Mart Stores, Inc., 183 F.3d 770, 772 (8th Cir.
1999)). The liability in Missouri is predicated on the foreseeability of the risk and the
reasonableness of the care extended toward business invitees. Hople, 219 F.3d at 824.
Whether a risk is reasonably foreseeable is a question of fact to be determined by
the totality of circumstances, including the business’ method of merchandising and
operating, as well as the nature of the article causing the injury. Sheil, 781 S.W.2d at
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780. Many businesses choose to operate under a method of self-service merchandising,
whereby they allow customers to walk through the aisles and handle the merchandise
themselves. Missouri has recognized that this method of merchandising makes it “more
likely that items for sale and other foreign substances will fall on to the floor.” See Head
v. Nat’l Super Markets, Inc., 902 S.W.2d 305, 307 (Mo. App. E.D. 1995) (quoting Sheil,
781 S.W.2d at 781). In choosing to operate under a self-service method of
merchandising, the business is “charged with the knowledge of the foreseeable risks
inherent in such a mode of operation,” regardless of whether the hazard arises from its
own products being misplaced on the floor “or some other device or condition.” Spencer
v. Kroger Co., 941 F.2d 699, 703 (8th Cir. 1991).
Defendant offers the following proof that it did not have constructive notice of the
grape on the floor in Checkout Aisle 1: plaintiff waked through Checkout Aisle 1,
without issue, less than 5 minutes before her slip and fall incident; 2 other customers
walked down Checkout Aisle 1 less than a minute before plaintiff’s slip and fall incident;
another customer was examining an item in a cart near the entrance to Checkout Aisle 1
approximately 10 seconds before plaintiff enters the video and falls; plaintiff’s daughter
who was sitting outside of the clinic on a bench facing Checkout Aisle 1 never observed
any debris or potential hazards; defendant’s employee Ms. Hunsaker walked across the
front aisle of the store and passed the exit of Checkout Aisle 1 before the slip and fall
incident; and, Ms. Hunsaker testified that she did, in fact, look in the general direction
down the registers as she walked across the front aisle.
In opposition, Plaintiff asserts that defendant sells green grapes every day; that
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Ms. Hunsaker never looked down and never observed the portion of the ground in
Checkout Aisle 1 where plaintiff later slipped and fell; that Ms. Hunsaker testified that
she otherwise did not recall walking the area to see if there was any debris or anything on
the floor before she opened Checkout Aisle 1; that defendant’s employees are to ensure
that before they open a cash register to serve customers in the cashier-assisted checkout
section of the store that they ensure the area is in clean, tidy, actively usable condition;
and, that defendant’s employe are to walk the area to make sure it is safe before they
open a cash register to serve customers in the cashier-assisted checkout section.
Upon review, the Court cannot say as a matter of law that defendant did not have
notice of the grape falling on to the floor in Checkout Aisle 1. The grape was obviously
an item that could be purchased in the store. In addition, although defendant’s employees
were charged with responsibility for checking the floor for safety, cleanliness, and an
actively usable condition, there is discrepancy in the testimony about whether defendant’s
employee specifically undertook those activities before opening Checkout Aisle 1 and
inviting plaintiff to walk through. Finally, plaintiff fell at the entrance to Checkout Aisle
1; and, the green grape was found and cleaned up after her fall. This evidence indicates
that the item was on the floor in an area where employees had the opportunity to observe
it. Further, although not a conclusive factor, there is no definitive evidence as to when, or
for how long, the grape had been there. While defendant would like to argue the
surveillance videos clearly support its position that it did not have constructive notice,
this court disagrees. The videos are unclear and grainy; and, they certainly don’t allow
for anyone to see a green grape on the floor.
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Based upon this evidence, as well as evidence regarding defendant’s method of
operation, there is a genuine issue of material fact from which a jury could conclude that
defendant had notice of the dangerous condition on the floor of the store. Given the fact
intensive nature of this case, the Court finds that the granting of summary judgment
would be inappropriate.
B. Has plaintiff failed to establish causation for the majority of her alleged
injuries?
A plaintiff has the burden of proving a causal connection between the alleged
negligence and the injury sustained. Oldaker v. Peters, 869 S.W.2d 94, 100 (Mo. App.
W.D. 1993). When plaintiff fails to prove a causal connection between the defendant’s
alleged negligence and plaintiff’s injuries, the plaintiff may not recover damages. Stroot
v. Taco Bell Corp., 972 S.W.2d 447, 449 (Mo. App. E.D. 1998) (citing Vann v. Town
Topic, Inc., 780 S.W.2d 659, 661-62 (Mo. App. W.D. 1989)).
It is not always essential to have medical testimony, as a causal connection
between an accident and an injury can be inferred in cases where there is a visible injury,
or a sudden onset of an injury, or any injury that as a matter of common knowledge
follows the act. Williams v. Jacobs, 972 S.W.2d 334, 340 (Mo. App. W.D. 1998). A
visible injury is one in which there is evidence of an obvious wound like a cut, bruise or
immediate bleeding. Id. Under the sudden onset doctrine, a causal connection may be
inferred if the injury “develops coincidentally with the negligent act, such as broken
bones…, immediate, continuing back pain…, or an obvious wound…” Id. (quoting
Demoulin v. Kissir, 446 S.W.2d 162, 165 (Mo. App. 1969). The testimony of a lay
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witness is sufficient to establish the nature, cause and extent of an injury “when the facts
fall within the realm of lay understanding.” Williams v. Jacobs, 972 S.W.2d at 340.
However, when the injury is a “sophisticated injury, which requires surgical intervention
or other highly scientific technique for diagnosis, and particularly where there is a serious
question of pre-existing disability and its extent, the proof of causation is not within the
realm of lay understanding.” Id. (quoting Griggs v. A.B. Chance Co., 503 S.W.2d 697,
704 (Mo. App. 1973)). Evidence of medical expenses and subjective complaints of pain
will not suffice in proving the existence or nature of an alleged injury which is not readily
discernable. Pihsiou Hsu v. Mound City Yellow Cab Co., 624 S.W.2d 61, 63 (Mo. App.
E.D. 1981).
Defendant argues that because plaintiff has no expert witness, she is unable to
establish the required element of causation for her TFCC injury and her shoulder injury.2
Plaintiff’s TFCC tear was diagnosed using highly scientific techniques and her
damages were the result of diagnostic injections and subsequent surgeries. Defendant’s
expert also raises a question regarding the potential that the TFCC tear was pre-existing
and caused by plaintiff’s history of playing and coaching volleyball. Therefore, the
sudden onset doctrine does not apply, and plaintiff is required to show through expert
testimony that her TFCC tear was caused by the slip and fall in defendant’s store.
Unfortunately, plaintiff has not and cannot establish through expert testimony that her
TFCC tear was caused by her slip and fall because she has not designated an expert
2 Defendant does not contest that plaintiff’s fractured elbow falls under the sudden onset doctrine;
and, therefore, does not require expert testimony as to causation.
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witness and has defended this motion for summary judgment with nothing more than her
own testimony regarding the injury. That is insufficient.
As to plaintiff’s shoulder injury, plaintiff did make some initial reports of shoulder
pain after the August 2021 slip and fall incident. However, plaintiff did not see a
shoulder specialist or start physical therapy until February 2022. Defendant’s expert
witness opined that plaintiff most likely had a sprain of her shoulder initially after the slip
and fall incident. However, in his opinion, he thought that such a sprain resolved in
“fairly short order”. Specifically, defendant’s expert opined that:
Q: 	And so it is your opinion to a reasonable degree of medical
certainty any treatment or pain Mrs. Hixson experienced in
her shoulder from February 9, 2022, to present is unrelated to
the incident at Walmart?
A: 	That would be my opinion, yes.
[Doc. 34-1 at 36:8-20].
Plaintiff has offered no evidence to defend against this expert opinion. Therefore, this
Court finds that causation has been established for plaintiff’s right shoulder injury only
for the time-period from August 4, 2021, through February 9, 2022. From February 9,
2022, to the present, plaintiff has failed to establish the required element of causation
between the incident at defendant’s store and her shoulder injury and treatment.
Based on the foregoing, this Court agrees with defendant that plaintiff is unable to
establish the required element of causation between the August 4, 2021, incident and (1)
her TFCC tear and (2) her shoulder injury and treatment for the period from February 9,
2022, to the present. Accordingly, defendant’s alternative request for partial summary
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judgment is granted.
V. 	Conclusion
In conclusion, this Court finds that a genuine issue of material fact exists as to
defendant’s constructive notice of the alleged dangerous condition that precludes the
granting of defendant’s motion for summary judgment. However, the Court finds that no
genuine issue of material fact exists as to plaintiff’s failure to present sufficient causation
expert testimony between the August 4, 2021, incident and (1) her TFCC tear and (2) her
shoulder injury and treatment for the period from February 9, 2022, to the present, such
that partial summary judgment should be granted.
Accordingly,
IT IS HEREBY ORDERED that defendant’s motion for summary judgment
[Doc. 32] is GRANTED IN PART and DENIED IN PART, as set forth herein.
SO ORDERED this 12th day of November, 2025.
STEPHEN N. LIMBAUGH, JR.
SENIOR UNITED STATES DISTRICT JUDGE
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