PITTSBURGH – A man who sued Wal-Mart for negligence after allegedly falling on a wet bathroom floor in one of the retail giant’s stores, is being labeled by defense counsel as a plaintiff with an extensive injury history and one who both disregarded a warning cone placed by the store and could not show the store had prior notice of the wet floor.
According to Wal-Mart's counsel Rebecca Sember Izsak, plaintiff Xavier Rios's extensive history of injuries casts a dubious shadow over his claims in the instant case. Rios was bitten by bed bugs on the job in November 2012, suffered an elbow injury in March 2014 that required 11 subsequent surgeries, had a rear-end motor vehicle collision after that, then slipped and fell in a former Target/Halloween-themed store restroom in October 2015.
All this in the midst of a 2013 hospital stay for a stroke and later diagnosis of high blood pressure and diabetic neuropathy in both of his feet, resulting in his use of a walking cane - a cane that Wal-Mart says he was not using on the day of the supposed accident, in a bathroom he claimed to have been in “a thousand times.”
“Rios had firsthand knowledge of what can happen when hurriedly walking into a public restroom without looking where he was going, given his previous slip and fall in the Target men’s bathroom," Wal-Mart's attorneys wrote in a recent motion for summary judgment.
"This time, when entering the bathroom, he was even warned of the possible presence of water by the orange caution cone and still took no precautions. One would think that the knowledge of a previous slip and fall, coupled with a warning sign, would cause Rios to exercise some type of precaution for his own well-being; it is inexcusable that he would ignore the orange caution cone’s presence."
Rios's counsel objected to the portrayal of his client.
"The comments made by counsel regarding plaintiff’s alleged “very unfortunate and unlucky history of injury in recent years” are not admissible at trial (nor would the actual evidence of such injury history, unless somehow germane to the present injuries). Certainly, they are not grounds for establishing the absence of any dispute of material fact or otherwise something that would form a basis for summary judgment. Plaintiff objects to this blatant attempt by counsel for defendant to unduly influence the court. They are improper and amount to character assassination," plaintiff counsel Dominic D. Salvatori said.
Rios, of Saegertown, initially filed suit in the Crawford County Court of Common Pleas on June 2, 2017 versus Wal-Mart, of Bentonville, Ark.
“On Jan. 27, 2017, plaintiff was lawfully on defendant’s property in the capacity of a business invitee, that is a customer of the store. On the above date, at approximately 2:15 p.m., plaintiff went to use the men’s bathroom at the front of the store. Upon exiting the rear stall, he went to use the sink when he encountered slippery, wet, slick, dangerous and hazardous conditions on the floor, causing him to lose his balance and fall violently,” according to the lawsuit.
The suit alleges Rios suffered “numerous injuries to...the head, neck, left arm and left thumb, either in the form of new injuries and/or aggravation of pre-existing conditions," and incurred pain and suffering, humiliation and embarrassment, loss of the enjoyment of the pleasures of life, past and future medical expenses and impairment of future earning capacity.
Rios claims Wal-Mart was negligent in choosing not to properly mop its bathroom floor, post appropriate warnings signs in the area where plaintiff fell and not training its employees in techniques to keep the floor clean and safe for customers, in addition to other charges.
Izsak countered that Rios had suffered a previous slip-and-fall in the men’s bathroom of another retail establishment while he was quickly walking into said bathroom, was not using a walking cane on the day of the accident – a cane he purchased to assist with diabetic neuropathy in his feet.
Izsak's two-pronged argument for the granting of summary judgment alleges Rios first assumed the risk of “an open and obvious condition” when he took note of the presence of the orange warning cone when entering and exiting the bathroom, and by his own admission through deposition, did not check the floor for water.
The second part of Izsak's argument states Rios was unable to provide evidence Wal-Mart had prior notice of tracked water on its bathroom's floor. This all despite the fact that, according to Izsak, that exact same notice of tracked water on the floor by the company is the very lynchpin of Rios's case.
“Rios has failed to present evidence supporting this most fundamental step in demonstrating negligence, and, as stated in Miller v. Twin Arches Ltd., “[A] defendant cannot be held liable for a condition of which it has no notice.” As Rios is completely unable to demonstrate that Wal-Mart had notice of the alleged condition causing his fall, judgment in favor of Wal-Mart is warranted and this Honorable Court should grant Wal-Mart’s Motion for Summary Judgment,” Izsak said.
“For the foregoing reasons, Wal-Mart respectfully requests that this Honorable Court grant its Motion for Summary Judgment as a matter of law as the record is clear in that Rios assumed the risk of an open and obvious condition and additionally has failed to establish the requisite element of notice, both of which are independently fatal to plaintiff’s claim.”
Rios’s counsel opposes that dismissal effort wholesale, and wants to see his client have his day in court.
For reasons of diversity of citizenship between the parties [with Rios being a resident of Saegertown and Wal-Mart being corporately based in Bentonville, Ark.] and damages sought likely being in excess of $75,000, the case was transferred to the U.S. District Court for the Western District of Pennsylvania.
For negligence, the plaintiff was initially seeking unspecified damages in excess of the arbitration limits of Crawford County [$25,000], but since the transfer to federal court and subsequent information as to the extent of Rios’s injuries, the amount in controversy is likely to exceed $75,000. Rios also seeks a trial by jury.
The plaintiff is represented by Salvatori in Meadville.
The defendant is represented by Sember Izsak of Thomas Thomas & Hafer, in Pittsburgh.
U.S. District Court for the Western District of Pennsylvania case 1:17-cv-00144
Crawford County Court of Common Pleas case AD-2017-211
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com