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Melinda Ebaugh v. Petsmart

July 2, 2012


The opinion of the court was delivered by: Karen E. Schreier Chief Judge


Plaintiff, Melinda Ebaugh, brought this negligence claim against defendant and third-party plaintiff, PetSmart, Inc., for damages that arose when she slipped, fell, and was injured at the PetSmart store. Docket 1. PetSmart filed a third-party complaint and requested contribution and indemnification from third-party defendants, Ambassador Floor Care Service, LLC, and Keith Netten, doing business as Detailing Unlimited. Docket 12.

Netten moves for summary judgment and claims that he was not negligent, he owed Ebaugh no duty of care, and he was not an independent contractor such that liability would attach to him personally. Docket 43. PetSmart resists that motion and claims that there are material facts in dispute and Netten owes Ebaugh a duty of care separate from PetSmart and Ambassador. Docket 55. Ambassador also resists summary judgment and claims that Netten was not an employee of Ambassador. Docket 51. Ebaugh takes no position on Netten's motion for summary judgment. Docket 47. For the following reasons, Netten's motion is denied.


PetSmart is a pet store that also offers veterinarian and grooming services in Sioux Falls, South Dakota. PetSmart used a company called USM Horizons (USM) to find and contract with a cleaning service to clean PetSmart's Sioux Falls store. Netten is a solo practitioner who does business under the name Detailing Unlimited.*fn1 USM hired Netten in May of 2009 to clean the PetSmart store five days a week. Each day, Netten cleaned the store before it opened at 9 a.m. Netten swept the floors, wiped windows, and cleaned the bathrooms. All cleaning equipment was provided by USM for Netten's use, and PetSmart supplied all the cleaning materials. Each day, a PetSmart manager would sign off on the cleaning list to ensure that Netten accomplished all his cleaning. The manager would tell Netten what to clean and what amounted to an acceptable level of cleanliness, or he would ask that the cleaning be done again if needed.

PetSmart stripped and rewaxed its floors approximately every other year. Prior to July of 2009, PetSmart decided that its floors needed to be stripped and rewaxed. An employee of USM asked Netten if he knew how to strip and rewax floors, but Netten did not know how, did not have the manpower, and did not have the equipment to complete the job. USM then contacted Scott Schmideskamp, Director of Operations for Ambassador, to ask if Ambassador could complete the job. Schmideskamp agreed to strip and rewax the PetSmart floors while also training Netten so he could perform the job on his own in the future.

Ambassador provided all the equipment necessary to complete the PetSmart job, including the stripping machine, an auto scrubber, and mops and buckets. PetSmart supplied the chemical stripper and wax. Ambassador paid Netten for his work on the PetSmart project. Each evening Mark Gunderson, PetSmart's operations manager, would ask the Ambassador employees when the store could open and would specify the time that the work had to be completed each morning. Docket 44 ¶ 32. He remained on the premises while Ambassador and Netten stripped and waxed each night.

During the first night of the PetSmart job, Netten worked with two Ambassador employees, Schmideskamp and Eric Landis. They showed Netten how to mix and apply the stripping solution. Netten then applied the stripping solution to the floor with a mop, and the two Ambassador employees followed with the propane stripper and auto scrubber and applied the wax. On that first evening, the Ambassador crew stripped the main or center aisle in PetSmart and the small aisles to the south, but only the smaller aisles were waxed. This resulted in a stripped but bare center aisle. During the second evening, Netten worked with Landis while Schmideskamp worked at a nearby store. That night, Netten and Landis stripped and waxed the aisles to the north of the center aisle. The center aisle was still stripped and bare.

On the morning of Ebaugh's accident on July 11, 2009, one of PetSmart's managers, Jodi Hoyt, arrived at PetSmart at 6 a.m., and noted that the Ambassador men were still working.*fn2 Schmideskamp arrived at PetSmart around 7 a.m. and stated that the work was completed for the day. When Netten had finished with the floor project for the day, he went about completing his normal cleaning routine. Netten then left PetSmart before 8 a.m. Before leaving, Netten taped off the drying aisle to the north of the store in an area known as "cat can alley" and put up a "do not enter" sign because the aisle was still wet. Netten also put a caution sign by the front door to warn customers about the condition of the floor. The Ambassador employees also used a number of caution signs as they worked and moved them around as needed. The warning signs were placed throughout the store, and there were three or four signs down the center aisle and one by the front door.

The morning of the accident, the center aisle remained stripped but not waxed, and the aisles to the north were still drying. Once the store was open for business, a PetSmart employee greeted employees and customers upon entrance into the store. The PetSmart employees told customers that the floors had been waxed, that people should use caution, and they should only use the center aisle. Docket 44 ¶ 64. PetSmart employees also attempted to create a wall that funneled people down the main aisle and was meant to prevent customers and employees from straying off of the center aisle to the freshly-waxed aisles on the north side of the store. Docket 44 ¶ 65.

Around 7:45 a.m. on July 14, 2009, Ebaugh entered PetSmart to drop off her two dogs for grooming. Ebaugh saw a cone near the front door and hesitated at the entrance. At least two PetSmart employees spoke with Ebaugh when she entered the store. They told her that the floors had been waxed and may still be wet, they instructed her to use caution, and they told her that the center aisle was safe to walk to the grooming salon and back. Docket 44 ¶ 68. Ebaugh acknowledges that she heard the PetSmart employees' instructions. Ebaugh went down the center aisle to the grooming salon at the back of the store. She claims she fell twice on that trip and that the center aisle was wet. After dropping her dogs off at the groomer, Ebaugh tried to exit the store through the aisles on the north side of the store. When Ebaugh was halfway down the north aisle, she slipped and fell and was injured.

Ebaugh filed her negligence claim against PetSmart. Docket 1-2 at 2. PetSmart filed a third-party complaint seeking contribution and indemnification from third-party defendants, Ambassador and Netten. Docket 12. Netten filed an amended answer with a cross-claim against Ambassador and a counterclaim against PetSmart. Docket 21. Netten now moves for summary judgment. Docket 43.


"One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses[.]" Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). Summary judgment is proper "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." Fed. R. Civ. P. 56(a); see also Celotex Corp., 477 U.S. at 323 ("[A] party seeking summary judgment always bears the initial responsibility of . . . demonstrat[ing] the absence of a genuine issue of material fact." (internal quotations omitted)). The moving party must inform the court of the basis for its motion and also identify the portion of the record that shows that there is no genuine issue in dispute. Hartnagel v. Norman, 953 F.2d 394, 395 (8th Cir. 1992) (citation omitted).

Once the moving party has met its initial burden, the nonmoving party must establish "that a fact . . . is genuinely disputed" either "by citing to particular parts of materials in the record," or by "showing that the materials cited do not establish the absence . . . of a genuine dispute." Fed. R. Civ. P. 56(c). "The nonmoving party may not 'rest on mere allegations or denials, but must demonstrate on the record the existence of specific facts which create a genuine issue for trial.' " Mosley v. City of Northwoods, Mo., 415 F.3d 908, 910 (8th Cir. 2005) (quoting Krenik v. Cnty. of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995)). For purposes of summary judgment, the facts, and inferences drawn from those facts, are "viewed in the light most ...

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