Green et al v. Atwood Distributing, L.P.

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
KIEL GREEN and
MELISSA GREEN 	PLAINTIFFS
V. 	CASE NO. 5:24-CV-5040
ATWOOD DISTRIBUTING, L.P. 	DEFENDANT
MEMORANDUM OPINION AND ORDER
Before the Court is Defendant Atwood Distributing, L.P.’s Motion for Summary
Judgment (Doc. 40) and Memorandum Brief in Support (Doc. 41). Plaintiffs Kiel and
Melissa Green have Responded in Opposition, see Docs. 51 & 52, and Atwood has
Replied (Doc. 53). The Greens brought this suit alleging that Atwood’s negligence
resulted in Mr. Green sustaining injuries while at one of Atwood’s stores. Mrs. Green also
seeks compensation for loss of consortium. For the reasons stated herein, Atwood’s
Motion for Summary Judgment is DENIED.
I. 	BACKGROUND1
The injury at the center of this suit occurred on September 9, 2023, when Kiel
Green and his son went to an Atwoods store to purchase goat feed. At the time, the store
was undergoing a “reset,” a massive reorganization or remodel of the store. According to
Mr. Green, the store was “torn to heck” and looked “almost like a construction zone” with
“stuff everywhere,” including “boxes all over the floors” and “pallets everywhere.” (Doc.
51-3, p. 2).
1 Atwood did not file a Statement of Undisputed Facts as required by Local Rule 56.1(a).
As this thwarts the Greens’ ability to make specific factual disputes, the Court entered a
text only order (Doc. 50) allowing the Greens to preserve their denial of facts by general
denial alone.
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Mr. Green and his son grabbed the goat feed and proceeded toward the checkout
area. Id. at p. 5. As they headed towards the front of the store, Mr. Green decided he
wanted to get some beef jerky. Id. Atwoods sells what is, apparently, particularly good
beef jerky out of an old-fashioned, wooden wagon that is open on the top. Id. at pp. 6–7;
Doc. 51-19, p. 2. Due to the reset, there was a pallet of metal shelving placed near the
jerky wagon. Below is a screenshot from Doc. 40-7 of the shelving.
According to Atwoods employees, the axels of the wheels of the jerky wagon were
positioned on the very left edge of the photo, and both the shelving and the wagon were
pushed up against a pallet of dog food (the black and green bags to the left of the
shelving). (Doc. 51-5, p. 16; Doc. 51-2, p. 36).
After selecting his jerky, Mr. Green struck his elbow on the pallet of shelving. It is
unclear if he backed into the shelving, turned into it, or caught his arm on it as he walked
past. Nevertheless, according to the Greens, it caused a Vasovagal syncope response
and Mr. Green passed out, sustaining a head injury. See Doc. 51, pp. 11, 25.
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Atwood conducted an investigation; however, there are no particularly clear photos
or videos of the incident or the scene. The one video in evidence that captured the incident
rather fuzzily shows Mr. Green entering a space between what looks to be the metal
shelving and the jerky wagon, selecting the jerky, then walking out of the space, at which
time he lifts his elbow and turns his head. See Doc. 44, ATWOOD_000158 (CLOSER
VIEW). He continues to walk for a few seconds before falling straight back. Id.
On February 13, 2024, the Greens filed suit bringing claims for negligence and
loss of consortium. Atwood filed this Motion on March 10, 2025.
II. 	LEGAL STANDARD
Under Federal Rule of Civil Procedure 56(a), “The court shall grant summary
judgment if the movant shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” The Court must review the facts in
the light most favorable to the opposing party and give that party the benefit of any
inferences that logically can be drawn from those facts. Canada v. Union Elec. Co., 135
F.3d 1211, 1212–13 (8th Cir. 1997). The moving party bears the burden of proving the
absence of a genuine dispute of material fact and that it is entitled to judgment as a matter
of law. See Fed. R. Civ. P. 56(c); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 586–87 (1986); Nat’l Bank of Commerce of El Dorado v. Dow Chem. Co., 165
F.3d 602 (8th Cir. 1999).
Once the moving party has met its burden, the non-moving party must “come
forward with ‘specific facts showing that there is a genuine issue for trial.’” Matsushita,
475 U.S. at 587 (quoting Fed. R. Civ. P. 56(c)). “[T]he mere existence of a scintilla of
evidence in support of the [moving party’s] position will be insufficient” to survive summary
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judgment. Anderson v. Durham D&M, L.L.C., 606 F.3d 513, 518 (8th Cir. 2010) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). Rather, for there to be a
genuine issue of material fact that would preclude summary judgment, the non-moving
party must produce evidence “such that a reasonable jury could return a verdict for the
nonmoving party.” Allison v. Flexway Trucking, Inc., 28 F.3d 64, 66 (8th Cir. 1994) (quoting
Liberty Lobby, 477 U.S. at 248).
III. DISCUSSION
Atwood moves for summary judgment on the argument that it had no duty to Mr.
Green as a business invitee because the hazard was an “open and obvious” danger and
that, without the negligence claim, Mrs. Green’s loss-of-consortium claim must fail as well.
The Greens make three arguments in response: that the danger was not open and
obvious, and even if it was, an exception applies; that Atwood’s failure to comply with a
local ordinance constitutes prima facie negligence; and that the Motion should be denied
as a sanction for Atwood’s spoliation of critical evidence. Atwood replies, arguing that the
hazard was open and obvious, the exception does not apply, this particular area of the
store was not subject to the ordinance’s aisle-width requirements, and sanctions for
spoliation would be improper.
A. Duty to Business Invitees
Generally, “a property owner has a duty to exercise ordinary care to maintain the
premises in a reasonably safe condition for the benefit of invitees.” Dollar Gen. Corp. v.
Elder, 2020 Ark. 208, at *7 (2020) (citation omitted). The owner’s “duty to warn an invitee
of a dangerous condition applies only to defects or conditions such as hidden dangers,
traps, snares, pitfalls and the like, in that they are known to the owner but not to the invitee
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and would not be observed by the latter in the exercise of ordinary care.” Id. (citation
omitted). However, where a “danger is known or obvious,” the landowner has no duty to
an invitee. Id. (citation omitted). This is known as the “open and obvious” exception. A
danger is “known” not only when there is “knowledge of the existence of the condition or
activity itself, but also appreciation of the danger it involves.” Van DeVeer v. RTJ, Inc., 81
Ark. App. 379, 386 (2003) (quoting Restatement (Second) of Torts § 343A). And it is
“obvious” where “both the condition and the risk are apparent to and would be recognized
by a reasonable man, in the position of the visitor, exercising ordinary perception,
intelligence, and judgment.” Id. (quoting Restatement (Second) of Torts § 343A). “Thus
the condition or activity must not only be known to exist, but it must also be recognized
that it is dangerous, and the probability and gravity of the threatened harm must be
appreciated.” Id. (citing Restatement (Second) of Torts § 343A).
The parties do not dispute that Mr. Green was a business invitee; rather they
dispute whether the hazard was “open and obvious.” First, Atwood argues that the general
size and nature of the shelving was such that a reasonable person would easily have
seen it and avoided putting their body in contact with it. (Doc. 41, p. 14). Atwood also cites
the Greens’ responses to request for admission that admit Mr. Green indeed saw the
shelving as he approached the jerky wagon. (Doc. 41, pp. 9–10 (citing Doc. 40-3, p. 2
(admitting that Mr. Green “saw the pallet of metal shelving when [he] approached the beef
jerky display” and that it “was not covered, hidden, or obscured in any way”))). In turn, the
Greens point to Mr. Green’s deposition, where he claimed to not “[s]pecifically” remember
“a pallet of shelving,” nor could he recall any details about the pallet of shelving. (Doc. 51,
p. 12 (citing Doc. 51-3, p. 7–8)). Importantly, the Greens note that the metal shelving had
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“a series of sharp points running up along the edges of the pallet.” Id. (citing Doc. 40- 7
(picture showing approximately thirty small metal prongs protruding from one of the
corners of the shelving into the space between the shelving and the jerky wagon)).
It is unclear exactly how Mr. Green injured his elbow on the shelving—whether he
backed into the shelving, turned into it, or caught his arm on it as he walked past. To the
extent the hazard here was simply the block of shelves and the risk was bumping into it,
the Court agrees with Atwood that such a condition and risk would be apparent to and
recognized by a reasonable man. See Van DeVeer, 81 Ark. App. at 386. However, viewing
the evidence in the light most favorable to Mr. Green, a reasonable juror could find that
Mr. Green did not simply bump into the shelving unit, but that he “caught” his arm on the
protruding metal prongs. This is supported by Mrs. Green’s Customer Incident Report that
states Mr. Green “[w]as walking” and “caught his arm on a display” and lists the “nature
of injury” as a “cut,” (Docs. 40-2 & 51-15), and the video of the incident that could
reasonably be viewed as Mr. Green catching his arm on the corner of the shelving with
the prongs as he walked past it, (Doc. 44, ATWOOD_000158 (CLOSER VIEW), at 0:14
(showing Mr. Green walking alongside the shelving, pulling up his elbow as he passes
the corner, and looking back at either the shelving or his elbow)). If Mr. Green was injured
in this manner, the question becomes whether the protruding metal prongs were an open
and obvious danger.
In Woodruff v. Western Sizzlin of Russellville, Inc., 2020 Ark. App. 396 (2020), the
Arkansas Court of Appeals found there was a genuine issue of material fact whether a
hazard was open and obvious because it was unclear if the plaintiff recognized the
danger. There, the plaintiff slipped and fell at the defendant’s restaurant as she was
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returning to her seat from the salad bar. Id. at 2. Notably, the plaintiff had “noticed the
carpet was wet when she walked to the salad bar before she fell.” Id. at 9. During her
return from the salad bar following the same route, the plaintiff slipped and fell in a slick
substance, which appeared to her, after the fact, to be melted ice cream and/or
hamburger. Id. at 2. The plaintiff testified that despite having seen some wet carpet before
falling, “she did not see standing water or notice any ice cream, hamburger, or other
potentially slick substance.” Id. at 10. The court there held the danger was not open and
obvious, reasoning that “[k]nowledge that the carpet was wet is not the equivalent of
knowing melted ice cream and hamburger are on the floor.” Id.
In contrast, cases where courts have found an open and obvious danger on
summary judgment often have much clearer evidence of the plaintiff’s recognition of the
danger. For example, in Drummond v. Lowe’s Home Centers, LLC, 2023 WL 8355898
(W.D. Ark. Dec. 1, 2023), this Court found that the puddle in which the plaintiff slipped and
fell was an open and obvious danger because it was “undisputed that [the plaintiff] saw
the puddle and attempted to step around it, showing her knowledge and appreciation of
the risk.” Id. at *2. Similarly, in Hope Medical Park Hospital v. Varner, 2019 Ark. App. 82
(2019), an Arkansas court held that the tree roots over which the plaintiff tripped were an
open and obvious danger because the plaintiff had worked at the location for fifteen years,
“had walked across the median with its tree roots sticking up many times, including fifteen
minutes before she fell,” and the plaintiff testified she saw the tree roots on the day of her
fall but “thought she could avoid tripping over the tree roots if she was being careful and
paying attention.” Id. at 3. According to the court in Hope Medical, the plaintiff’s “testimony
show[ed] that she appreciated the danger of the situation,” just like in Drummond. Id. at
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6. Likewise, in Lackey v. Mays, 103 Ark. App. 70 (2008), an Arkansas court affirmed that
the defendant had no duty to the plaintiff who had been t-boned while driving through the
defendant’s parking lot under the open and obvious danger exception because the plaintiff
had stated that he had “slowed down and looked left and right twice” because, as a police
officer, “he knew that wrecks had occurred at the existing intersections,” and he had even
responded to some. Id. at 76. Therefore, the court held that the plaintiff “knew and
appreciated the risks of the new intersections.” Id.
The case at bar is distinct from Drummond, Hope Medical, and Lackey, and is
more in keeping with Woodruff. While Mr. Green may have—and a reasonable person in
his condition should have—seen the stack of shelves, knowledge of the existence of the
shelving “is not the equivalent of knowing” sharp metal prongs protruded from the
shelving. Woodruff, 2020 Ark. App. 396, at 10. Atwood has not pointed to any evidence
that Mr. Green knew of the metal prongs and the danger they posed. Nor has Atwood
persuasively argued that such a condition and risk would be so obvious to a reasonable
person that the Court should make such a finding as a matter of law. Thus, the Court finds
that there is a genuine issue of material fact whether the small metal prongs protruding
from the shelving were an open and obvious danger, so it cannot say as a matter of law
whether Atwood owed a duty to Mr. Green.2
2 Atwood also asserts that Mr. Green was generally not cautious of his surroundings. To
the extent such an argument seeks summary judgment on an affirmative defense of
comparative fault, the Court finds there is a genuine issue of material fact and reserves
this question for a jury.
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B. Prima Facie Negligence
Ordinances “can create obligations and duties that may impose duties additional
to those required by common law.” Carter v. Entergy Ark., Inc., 2024 Ark. App. 573, at 10
(2024), reh'g denied (Jan. 15, 2025), review denied (Mar. 20, 2025) (citing Restatement
(Second) of Torts § 343A cmt. d). And a plaintiff may use a defendant’s “failure to comply”
with a local “ordinance” as “prima facie evidence of negligence.” Id. (first citing Waddell v.
Ferguson Home Builders, LLC, 2017 Ark. App. 66, at 7; and then citing Cent. Okla.
Pipeline, Inc. v. Hawk Field Servs., LLC, 2012 Ark. 157; and then citing Bolstad v.
Pergeson, 305 Ark. 163 (1991)). Where a local ordinance incorporates an external
standard, Arkansas courts have looked to the incorporated standard as setting the duty.
See id. at 11 (looking to the National Electrical Safety Code standards that had been
incorporated by reference into the ordinance).
Here, the local ordinance, Section 16-930, adopted the latest edition of the
Arkansas Fire Prevention Code, based on the International Building Code (“IBC”) and the
International Fire Code (“IFC”), as well as the latest edition of the Life Safety Code (“LSC”)
of the National Fire Protection Association. (Doc. 51-1, p. 1). The Greens provide an
affidavit from their expert, Jason T. English,3 that explains the aisle-width requirements of
3 On May 2, 2025, Atwood filed a Daubert Motion to Exclude Plaintiffs’ Expert Witness
Jason English and Brief in Support. (Docs. 54 & 55). The Court does not take up that
argument here. While the Court generally sets the summary judgment and Daubert
motion deadlines on the same date, in this case, the Daubert motion deadline was
extended per Atwood’s request. See Doc. 28. The Court, however, declined Atwood’s
request to extend the summary judgment deadline because multiple extensions had
already 	been 	given, Atwood 	did 	not 	explain 	how 	the 	certain 	outstanding 	expert
depositions would be used in support of a summary judgment motion, and an extension
likely would have prevented the Court from ruling on summary judgment prior to the May
settlement conference. See Docs. 37, 38, & 39. Moreover, the Court’s determination
whether Atwood had a duty based on an ordinance violation is not dispositive here
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the IBC, IFC, and LSC. See Doc. 51-11. Atwood does not object that it is subject to the
Ordinance’s width-requirements, but it argues that such width-requirements did not apply
to the area between the jerky wagon and pallet of shelving because it was not a means
of egress and that it complied with the relevant codes because an aisle was provided on
the other side of the jerky wagon. See Doc. 53, pp. 5–6.
The Greens argue that “because the space between the beef jerky wagon and the
pallet of metal shelving was accessible to customers and offered products for sale, it was
required to comply with the codes’ aisle requirements,” citing the affidavit from their
expert, Mr. English. According to Mr. English—and accepted by Atwood in its Reply—the
IBC, IFC, and LSC set forth certain width and accessibility requirements for “means of
egress,” required aisle accessways, and non-required aisle accessways. (Doc. 51-11,
¶¶ 4–7). Per Mr. English’s affidavit, the IBC defines “means of egress” as “[a] continuous
and unobstructed path of vertical and horizontal egress travel from any occupied portion
of a building or structure to a public way.” Id. at ¶ 5b. It generally prohibits obstructions
from being “placed in the required width of a means of egress.” Id. at ¶ 5c. Additionally
aisles and aisle accessways have a minimum “clear width” of 30 inches, “measured
perpendicular to the elements and the merchandise within the merchandise pad.” Id. at
¶ 5f. An aisle accessway is required “on at least one side of each element within the
merchandise pad,” but other aisles and aisle accessways are allowed provided they
comply with the 30-inch width requirement. Id. at ¶ 5f. Mr. English asserts in his affidavit
that “[t]he empty space between the Iowa Smokehouse beef jerky wagon and the pallet
because the negligence claim would survive on the Court’s finding that there is a genuine
issue of material fact as to whether Atwood had a duty to Mr. Green as a business invitee.
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of metal shelving was an aisle accessway . . . .,” but “[i]nstead of the minimum 30-inch
clearance, the clearance was likely only about 24 inches wide.” Id. at ¶¶ 9–10.
Atwood argues that the space between the jerky wagon and pallet of shelves was
not a means of egress because the path between the jerky wagon and shelving was
blocked by pallets of dog food, and so the space “was not a continuous and unobstructed
pathway, and as such was not subject to the aisle requirements.” Doc. 53, pp. 5–6 (citing
Doc. 40-5, pp. 8–10 (Kenny Shiplet, Depo.)); see also Doc. 51-7, p. 13 (Braylon Smith,
Depo.). Atwood also argues that the set up complied with the relevant codes cited by Mr.
English because the jerky wagon was accessible from two sides other than the one near
the shelving. (Doc. 53, p. 6 (citing Doc. 40-9, p. 5 (John Smith, Depo))).
While Atwood’s argument supports the notions that crossing over the dog-food
pallet would not be a means of egress and that the space in question was a not a required
aisle accessway, Atwood has not provided persuasive support for its argument that it had
no duty to provide a clear path from the space between the jerky wagon and shelving
back to a main aisle. And the Court is not persuaded on the current record that, as a
matter of law, the space between the jerky wagon and the pallet of shelving was not
subject to a width requirement.
C. Loss of Consortium
Atwood argues that, along with Mr. Green’s claim for negligence, Mrs. Green’s
claim for loss of consortium should be dismissed because it wholly derives from the
negligence claim. Because the Court declines to dismiss Mr. Green’s negligence claim
on summary judgment, and because Atwood makes no other argument for dismissal of
the loss-of-consortium claim, the claim survives summary judgment.
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D. Spoliation
Lastly, in their Response, the Greens ask the Court to deny Atwood’s Motion for
Summary Judgment as a sanction for alleged destruction of videos and documents in this
case. (Doc. 51, pp. 21–24). Specifically, they assert that after receiving notice of a
potential lawsuit and a request to preserve all relevant evidence, Atwood failed to suspend
its routine records-retention policy resulting in the destruction of surveillance footage from
twenty-two of its twenty-four security cameras and an unknown number of reports of daily
safety walks. Id. at p. 22. Because the Court denies summary judgment on the finding
that there are genuine issues of material fact, it does not decide whether to deny summary
judgment on the spoliation argument.
IV. CONCLUSION
Accordingly, IT IS HEREBY ORDERED that the Motion for Summary Judgment
(Doc. 40) is DENIED.
IT IS SO ORDERED on this 9 th day of May 2025.
_____________________________
TIMOTHY L. BROOKS
UNITED STATES DISTRICT JUDGE
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