Jacqulyn McQuiston, deceased, By v. Walmart Stores East I, LP

United States Court of Appeals
For the Eighth Circuit
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No. 22-2284
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Jacqulyn McQuiston, deceased, By and through her Personal Representative,
Raylene VanDorn
Plaintiff - Appellant
Raylene VanDorn; Patricia Samuel; Jerald Samuel
Plaintiffs
v.
Walmart Stores East I, LP
Defendant - Appellee
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Appeal from United States District Court
for the Western District of Missouri - St. Joseph
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Submitted: February 17, 2023
Filed: June 2, 2023
[Unpublished]
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Before SMITH, Chief Judge, STRAS and KOBES, Circuit Judges.
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PER CURIAM.

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Jacqulyn McQuiston’s estate sued after she slipped and fell in the bathroom
of a Missouri Walmart. The district court1 dismissed her negligence claim on
summary judgment, and we affirm.
I.
On the way to the women’s restroom, McQuiston passed a cone saying that
the floor inside was wet. A couple minutes later, McQuiston’s daughter entered after
hearing her mother call her name. What she saw was McQuiston lying “on the floor
of the handicapped stall with blood ‘everywhere.’” Emergency personnel took her
to the hospital, where she received treatment for a broken ankle.
The injury led doctors to suspend her chemotherapy treatments. When she
later passed away from cancer, the personal representative of her estate sued
Walmart for negligence. Walmart removed the case to federal court and requested
summary judgment. The district court eventually granted the motion.
II.
We review the district court’s decision to grant summary judgment de novo.
See Couch v. Am. Bottling Co., 955 F.3d 1106, 1108 (8th Cir. 2020). “Summary
judgment is appropriate when the evidence, viewed in a light most favorable to the
nonmoving party, shows no genuine issue of material fact exists and the moving
party is entitled to judgment as a matter of law.” Id. (citation omitted).
As tragic as the circumstances of this case are, summary judgment was
appropriate because the estate never “establish[ed] . . . an [essential] element” of its
claim. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In Missouri, the
“foundation for premises liability” is the existence of a dangerous condition. Rycraw
1 The Honorable Stephen R. Bough, United States District Judge for the
Western District of Missouri.

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v. White Castle Sys., 28 S.W.3d 495, 499 (Mo. Ct. App. 2000); see Hodge ex rel.
Farrow v. Walgreen Co., 37 F.4th 461, 464 (8th Cir. 2022) (applying Missouri law
in a diversity case).
The dangerous condition here, at least according to the estate, was a wet floor.
The problem, however, is that there is no admissible evidence establishing that the
floor was wet when McQuiston fell, much less that the “risk” was “unreasonable.”
Rycraw, 28 S.W.3d at 499 (requiring “testimony or other evidence from which it can
be inferred there was a dangerous condition on the floor”).
First, there is no direct evidence. McQuiston did not testify before her death,
nor was any effort made to document and preserve what she remembered about the
fall. See Lofgren v. BNSF Railway Co., 231 F. Supp. 3d 322, 324–25 (D.N.D. 2017)
(discussing the use of trial depositions “to preserve testimony if a witness is not
available to testify in person at trial”). And no one else saw water on the floor, at
least according to the summary-judgment record. See Steward v. Baywood Vills.
Condo. Ass’n, 134 S.W.3d 679, 683 (Mo. Ct. App. 2004) (explaining that the
evidence did not support an inference that ice was present when the plaintiff “did
not call any witnesses who saw ice on the porch at the time of her fall”).
Second, the circumstantial evidence is weak. The estate points to three facts:
the presence of a wet-floor cone, a maintenance worker who entered the bathroom
with a cordless drill, and Walmart’s failure to photograph the scene until after
someone had already cleaned it. At first glance, the presence of the cone would
appear to support the estate’s claim. But a cone “near the [restroom] does not
automatically translate into” standing water inside the handicapped stall. Whaley v.
LS & E, Inc., 859 S.W.2d 180, 182 (Mo. Ct. App. 1993) (per curiam). At least not
here, when the cone had been outside the restroom for at least an hour, and none of
the people who helped McQuiston saw any water on the floor. See id. (pointing out
that a witness “did not notice” anything that could have caused the plaintiff’s fall).

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The remaining evidence is even less helpful. It would be “sheer speculation
and surmise” to infer the floor was wet just because a maintenance worker later
appeared with a cordless drill. Hayes v. Nat’l Super Markets, Inc., 612 S.W.2d 819,
823 (Mo. Ct. App. 1981). And Walmart’s failure to photograph the scene cannot,
on its own, establish a dangerous condition. See id. at 821 (rejecting “unreasonable,
speculative, or forced inferences” in a wet-floor, slip-and-fall case).
The estate’s view is different, largely because McQuiston told others what
happened. Even aside from the fact that she never mentioned the presence of water,
nothing she said to others is admissible in court, so it “cannot be used to defeat
summary judgment.”2 Brunsting v. Lutsen Mountains Corp., 601 F.3d 813, 817 (8th
Cir. 2010).
Nor did the district court abuse its discretion in excluding other unrelated and
dissimilar falls, even though they occurred in the same Walmart store. See Quigley
v. Winter, 598 F.3d 938, 946 (8th Cir. 2010) (reviewing the decision to exclude
testimony for an abuse of discretion); J.B. Hunt Transp., Inc. v. Gen. Motors Corp.,
243 F.3d 441, 445 (8th Cir. 2001) (requiring substantial similarity before admitting
prior-accident evidence). The point is that, without admissible evidence of the
restroom’s condition when McQuiston walked through the door, the estate’s
negligence claim cannot get past summary judgment. See Celotex, 477 U.S. at 325.
III.
With so little evidence, the estate asks for relief from the judgment to provide
more. See Fed. R. Civ. P. 59(e), 60(b). It wants to introduce an audio recording of
how one paramedic described the accident scene. The district court denied the
2 To the extent the argument is that a hearsay exception applies, it has come
too late. See Sitzer v. Nat’l Ass’n of Realtors, 12 F.4th 853, 855 n.2 (8th Cir. 2021)
(explaining that a party must make more than “passing references” to an argument
in its opening brief “for us to consider it”).

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motion, primarily because it was unwilling to excuse the “ignorance or carelessness”
of the estate’s attorney, who could have introduced it earlier.
This type of motion “cannot be used to introduce new evidence . . . [that]
could have been offered or raised prior to the entry of judgment.” United States v.
Metro. St. Louis Sewer Dist., 440 F.3d 930, 933, 935–36 (8th Cir. 2006). Here, it is
undisputed that the estate had access to the recording months before the district court
entered judgment. And there is also no doubt it was counsel’s mistake that led to its
omission. See Edward H. Bohlin Co. v. Banning Co., 6 F.3d 350, 357 (5th Cir. 1993)
(“Gross carelessness, ignorance of the rules, or ignorance of the law are insufficient
bases for 60(b)(1) relief.”). In these circumstances, we cannot say the court abused
its discretion in refusing to allow the estate to belatedly fix its own error. See Metro.
St. Louis Sewer Dist., 440 F.3d at 933, 935; see also Noah v. Bond Cold Storage,
408 F.3d 1043, 1045 (8th Cir. 2005) (reserving such relief for “exceptional” cases
(citation omitted)).
IV.
We accordingly affirm the judgment of the district court.
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