787 Fed.Appx. 627 (11th Cir. 2019), 19-11630, Garrison v. Sams East, Inc.
|Citation:||787 Fed.Appx. 627|
|Opinion Judge:||PER CURIAM:|
|Party Name:||Angela GARRISON, Plaintiff-Appellant, v. SAMS EAST, INC., Sams East, Inc., d/b/a Sams Club, Wal-Mart Stores East, Inc., Defendants-Appellees.|
|Attorney:||Christian W. Harben, Attorney, Law Office of Christian W. Harben, Satsuma, AL, Sidney W. Jackson, III, Counsel, Jackson & Foster, LLC, Mobile, AL, Robert Jeffrey Perloff, R. Jeffrey Perloff, PC, Mobile, AL, for Plaintiff - Appellant Nathan L. Burrow, W. Pemble Chad Christopher Marchand, DeLashmet...|
|Judge Panel:||Before WILSON, NEWSOM, and HULL, Circuit Judges.|
|Case Date:||October 01, 2019|
|Court:||United States Courts of Appeals, Court of Appeals for the Eleventh Circuit|
DO NOT PUBLISH. (See Federal Rule of Appellate Procedure Rule 32.1. See also U.S.Ct. of App. 11th Cir. Rule 36-2.)
Christian W. Harben, Attorney, Law Office of Christian W. Harben, Satsuma, AL, Sidney W. Jackson, III, Counsel, Jackson & Foster, LLC, Mobile, AL, Robert Jeffrey Perloff, R. Jeffrey Perloff, PC, Mobile, AL, for Plaintiff - Appellant
Nathan L. Burrow, W. Pemble Chad Christopher Marchand, DeLashmet, DeLashmet & Marchand, PC, Mobile, AL, for Defendants - Appellees
Appeal from the United States District Court for the Southern District of Alabama, D.C. Docket No. 1:17-cv-00381-C
Before WILSON, NEWSOM, and HULL, Circuit Judges.
In this slip-and-fall case, Angela Garrison appeals the district courts (1) exclusion of evidence, (2) limitation on discovery, and (3) grant of summary judgment in favor of defendants Sams East, Inc.— doing business as Sams Club— and Walmart on her premises-liability claims for negligence and wantonness. After careful review, we affirm.
The facts of this case are straightforward. After purchasing a fountain drink from the Sams Club cafe, Garrison fell as she turned away from the counter. After the fall, she felt wet and observed liquid on the floor that extended underneath the counter. She also saw a mop behind the counter. Walmart employees cleaned up the area using cones, paper towels, and the mop. Five months after the fall, Garrison sent Sams a letter demanding that it preserve all video evidence of the incident. Unfortunately, the video system retains footage for only three months, and as a result some (but not all) of the pertinent video had already been overwritten. Ultimately, neither the remaining surveillance video nor any witness has been able to identify the source of the liquid or how long it had been on the floor. Nor could anyone describe the nature or size of the spill.
Garrison filed suit asserting premises-liability claims for negligence and wantonness. During proceedings below, the district court excluded Garrisons out-of-court statements to her insurance claims adjuster as hearsay and denied her motion to compel discovery into whether Walmart remodeled the store after the incident, possibly as a subsequent remedial measure. She now appeals these orders,1 as well
as the district courts ultimate grant of summary judgment in favor of defendants on all claims, arguing that there is sufficient evidence of negligence and wantonness, including the alleged spoliation of the video footage, to survive summary judgment.
Garrisons arguments that the district court erred in its evidentiary and discovery orders are without merit. We review a district courts exclusion of evidence for abuse of discretion. Rosenfeld v. Oceania Cruises, Inc., 654 F.3d 1190, 1192 (11th Cir. 2011) (concerning the admission of expert testimony in slip-and-fall liability case). Garrison argues that the district court erred in excluding the recording of a telephone conversation between herself and a claims adjuster, which she maintains should have been admitted under the recorded-recollection hearsay exception in Federal Rule of Evidence 803(5). A recorded recollection must be "made or adopted by the witness when the matter was fresh in the witnesss memory." Fed.R.Evid. 803(5)(B). The recording here was made five months after the incident. It was not "manifestly erroneous" for the district court to determine that the recording should not be admitted, and so we affirm its exclusion. Rosenfeld, 654 F.3d at 1192 (quoting Gen. Elec. Co. v. Joiner, 522 U.S. 136, 142, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997)).
When reviewing a district courts denial of a motion to compel discovery, we likewise apply an abuse-of-discretion standard that affords the district court a wide...
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