Funez v. Wal-Mart Stores E., LP

• Court: U.S. District Court — Northern District of Georgia
• Writing for the Court: WILLIAM S. DUFFEY
• Decision Date: 09 January 2013
• Docket Number: 1:12-cv-0259-WSD
• Citation: Funez v. Wal-Mart Stores E., LP, 1:12-cv-0259-WSD (N.D. Ga. Jan 09, 2013)
• Parties: CLAUDIA FUNEZ, Plaintiff, v. WAL-MART STORES EAST, LP, Defendant.

CLAUDIA FUNEZ, Plaintiff, v. WAL-MART STORES EAST, LP, Defendant.

1:12-cv-0259-WSD

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION

SO ORDERED: January 9, 2013

OPINION AND ORDER

This matter is before the Court on Wal-Mart Stores East, LP's ("Wal-Mart" or "Defendant") Motion for Medical Examination [24] and Motion for Summary Judgment [29].

I. BACKGROUND¹

A. Plaintiff's slip and fall

On August 31, 2010, Claudia Funez ("Plaintiff") went shopping with her brother at Wal-Mart Store #5390 in Marietta, Georgia. (DSMF ¶ 1). Afterentering the store, Plaintiff selected a shopping cart and placed some laundry and dishwashing soap in it. (Id. ¶¶ 2, 16).

After shopping for about a half an hour, Plaintiff entered the boys' clothing department in the store and her brother went to shop in another area. (Id. ¶ 3-5). Plaintiff left her shopping cart in one of the white-tiled aisles in the boys' clothing department, and walked away from it to look at boys' clothing items. (Id. ¶¶ 4-5). Plaintiff remained within eyesight of her shopping cart while she shopped about eight to ten feet away. (Id. ¶ 6).

A few minutes after leaving her cart to look at items in the boys' department, Plaintiff walked back to her cart. (Id.). As she did, Plaintiff, in the process of touching her cart, slipped and fell on a slippery substance on the tile floor. (Id. ¶ 7). Her shopping cart slid out from under her, and she fell to the ground. (Id. ¶¶ 8, 21).

The substance on the floor on which Plaintiff slipped, was a yellow liquid resembling cooking oil in a spot about three (3) inches in diameter. (Id. ¶ 9). The substance was noticeable to a person standing within three feet of the spill. (Id. ¶ 10). Neither Plaintiff nor her brother saw the substance prior to Plaintiff's accident. (Id. ¶¶ 11-13).

The parties do not know the origin of the substance or how long it was on the floor before Plaintiff slipped and fell. (Id. ¶¶ 14-15, 27, 31). Although Defendant has policies regarding periodic inspections and spill management, it is unknown when, before Plaintiff's fall, a Wal-Mart employee inspected the area where Plaintiff slipped. (Id. ¶¶ 27-31).

B. Procedural history

On January 16, 2012, Plaintiff filed this action against Defendant in the State Court of Gwinnett County. (Compl. at 1). Plaintiff's Complaint asserts a single claim of negligence based on her slip and fall at Wal-Mart Store #5390 in Marietta, Georgia. (Id. at 2).

On January 25, 2012, Defendant removed the action to this Court based on diversity jurisdiction. (Notice of Removal [1] ¶ 7).

On July 23, 2012, Defendant filed its Motion for Medical Examination [24]. Defendant seeks "an Order requiring Plaintiff Funez to submit to a medical examination by Bennett J. Axelrod, M.D." (Def.'s Mot. for Medical Examination at 2). Plaintiff opposes Defendant's request for a medical examination claiming that Dr. Axelrod is not independent and an examination is unnecessary because Defendant has had access to Plaintiff's medical records through discovery. (Pl.'s Resp. to Def.'s Mot. for Medical Examination at 5-9). If the Court grantsDefendant's request for an order requiring Plaintiff to submit to an examination, Plaintiff requests that the order require that: (1) Plaintiff's counsel be allowed to attend the examination; (2) the examination be videotaped; (3) the examination be conducted by a physician of the Court's choosing; (4) "the examination take place only once with no painful, intrusive, or potentially harmful tests;" (5) Plaintiff be granted access to any and all reports prepared by Dr. Axelrod; (6) Dr. Axelrod be made available for a deposition and produce prior to his deposition "copies of all 1099 forms, W-2 forms, or some other equally reliable document that would verify his income (and the income of any companies he is affiliated with) from doing [Independent Medical Exams] for the years 1999, 2000, 2001, and 2002;" and, (7) in the event of trial, references to Dr. Axelrod's examination be prohibited from including the word "independent." (Id. at 9-16).

On July 25, 2012, Defendant filed its Motion for Summary Judgment [29]. Defendant asserts that summary judgment is appropriate on two grounds: (1) that Defendant lacked actual or constructive knowledge of the hazard; and, (2) alternatively, that Plaintiff failed to exercise ordinary care as a matter of law by failing to see and identify the hazard. (Def.'s Br. in Supp. of Mot. for Summ. J. [29.2] at 5-16).

II. DISCUSSION

A. Summary judgment standard

A 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." Fed. R. Civ. P. 56(a). Parties "asserting that a fact cannot be or is genuinely disputed must support that assertion by . . . citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials." Fed. R. Civ. P. 56(c)(1).

The party seeking summary judgment bears the burden of demonstrating the absence of a genuine dispute as to any material fact. Herzog v. Castle Rock Entm't, 193 F.3d 1241, 1246 (11th Cir. 1999). Once the moving party has met this burden, the non-movant must demonstrate that summary judgment is inappropriate by designating specific facts showing a genuine issue for trial. Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1282 (11th Cir. 1999). Non-moving parties "need not present evidence in a form necessary for admission at trial; however, [they] may not merely rest on [their] pleadings." Id.

The Court must view all evidence in the light most favorable to the party opposing the motion and must draw all inferences in favor of the non-movant, but only "to the extent supportable by the record." Garczynski v. Bradshaw, 573 F.3d 1158, 1165 (11th Cir. 2009) (quoting Scott v. Harris, 550 U.S. 372, 381 n.8 (2007)). "[C]redibility determinations, the weighing of evidence, and the drawing of inferences from the facts are the function of the jury . . . ." Graham, 193 F.3d at 1282. "If the record presents factual issues, the court must not decide them; it must deny the motion and proceed to trial." Herzog, 193 F.3d at 1246. But, "[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party," summary judgment for the moving party is proper. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

B. Standard for a negligence slip and fall claim in Georgia

A plaintiff asserting a cause of action for negligence under Georgia law must establish (1) the existence of a duty on the part of the defendant, (2) a breach of that duty, (3) causation, and (4) damages. Rasnick v. Krishna Hospitality, Inc., 713 S.E.2d 835, 837 (Ga. 2011) (citing John Crane, Inc. v. Jones, 604 S.E.2d 822, 825 (Ga. 2004)).²

Under Georgia premises law, a landowner owes an invitee a duty to "exercise ordinary care in keeping the premises and approaches safe." O.C.G.A. § 51-3-1; Bartlett v. McDonough Bedding Co., 722 S.E.2d 380, 382 (Ga. Ct. App. 2012) (quoting Gaydos v. Grupe Real Estate Investors, 440 S.E.2d 545, 547 (Ga. Ct. App. 1994)). A landowner is not an insurer of the invitee's safety. Id. (quoting Gaydos, 440 S.E.2d at 547). The duty extends to an invitee where the landowner has actual or constructive knowledge of a hazard and the invitee, in the exercise of ordinary care, lacks knowledge of the hazard. See Whitley v. H & S Homes, LLC, 632 S.E.2d 728, 729 (Ga. Ct. App. 2006) (citing Ford v. Bank of Am. Corp., 627 S.E.2d 376, 378 (Ga. Ct. App. 2006)); see also id. (quoting Garrett v. Hanes, 616 S.E.2d 202, 204 (Ga. Ct. App. 2005)) ("The true basis for an owner's liability is his superior knowledge of the existence of a condition that could subject his invitees to an unreasonable risk of injury.").

Where the invitee is shown to have had actual or constructive knowledge of a hazard, Georgia courts have held that the landowner did not owe a duty to safeguard the invitee from the hazard, even if the landowner also had knowledge of the hazard. See Delk v. QuikTrip Corp., 572 S.E.2d 676, 678 (Ga. Ct. App. 2002)(where gas station customer had knowledge of protruding storage tank cover in parking lot, gas station did not have "superior knowledge" and, therefore, did not have a duty to safeguard customer from tripping over the cover); Chisholm v. Fulton Supply Co., 361 S.E.2d 540, 541-42 (Ga. Ct. App. 1987) (store owner did not owe duty to warn regular customer of "high" step because customer had used the stairs in the past and his "knowledge as to the 'risers and treads' of the stairs was equal to that of the proprietor"). "[A] plaintiff must show that she was injured by a hazard that the owner 'should have removed in the exercise of ordinary care for the safety of the invited public.'" Ahuja v. Cumberland Mall, LLC, 821 F. Supp. 2d 1317, 1324 (N.D. Ga. 2010) (quoting Am. Multi-Cinema, Inc. v. Brown, 679 S.E.2d 25, 27 (Ga. 2009)). Accordingly, "in order to recover for injuries sustained in a slip-and-fall action, an invitee must prove (1) that the defendant had actual or constructive knowledge of the hazard; and (2) that the plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to the actions or conditions within the control of the owner/occupier." Robinson, 493 S.E.2d at 414; see also Am. Multi-Cinema, Inc., 679 S.E.2d at 27-28.

Defendant asserts in this case that summary judgment is appropriate because: (1) it lacked actual or constructive knowledge of the hazard; and, (2) Plaintiff failed to exercise ordinary care as a matter of law by failing to notice andavoid the hazard. In examining these arguments, the Court considers the Georgia Supreme Court's admonition that

issues such as how closely a particular retailer

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