King v. Wal-Mart Stores E., LP

• Court: U.S. District Court — Northern District of Georgia
• Writing for the Court: WILLIAM S. DUFFtY, JR. UNITED STATES DISTRICT JUDGE
• Decision Date: 27 August 2014
• Docket Number: 1:13-cv-2763-WSD
• Citation: King v. Wal-Mart Stores E., LP, 1:13-cv-2763-WSD (N.D. Ga. Aug 27, 2014)
• Parties: JULIUS KING and CYNTHIA ROGERS, Plaintiffs, v. WAL-MART STORES EAST, LP, Defendant.

JULIUS KING and CYNTHIA ROGERS, Plaintiffs, v. WAL-MART STORES EAST, LP, Defendant.

1:13-cv-2763-WSD

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

August 27, 2014

OPINION AND ORDER

This matter is before the Court on Defendant Wal-Mart Stores East, LP's ("Defendant" or "Wal-Mart") Motion for Summary Judgment [21] and Motion to Strike [37].

I. BACKGROUND

On July 31, 2011, Julius King ("King"), his wife, Cynthia Rogers ("Rogers") (together, "Plaintiffs"), and their family were shopping at a Wal-Mart store in Atlanta, Georgia. (DSMF [21.1] ¶ 1). King was walking down a main aisle of the store behind his family members. (Id.). They took a left down a side aisle where drinks are located, and King continued walking straight on the main aisle to look at clothing for his daughter. (Id. ¶ 5-6). King took a few steps, realized he needed to find out his daughter's size, turned around, and started to walk down the main aisletoward his family when he slipped and fell on a puddle of liquid. (Id. ¶ 7). King's fall occurred at the intersection of the main aisle and the side aisle that his family had walked down, and they were standing at the opposite end of the side aisle when he fell. (Id. at ¶¶ 8, 10). A pallet of Sprite was located at the end of the side aisle near were King fell, and a 12-pack of Sprite was on the floor. (Id. ¶¶ 11, 29). Plaintiffs did not see the liquid or the 12-pack of Sprite on the floor before King fell. (Id. ¶¶ 30-31). Plaintiffs do not know the source of the liquid and they do not know when it was spilled or how long it had been on the floor before King fell. (Id. ¶¶ 32-36).

On July 23, 2013, Plaintiffs filed their Complaint [1.1] in the State Court of DeKalb County, Georgia. King asserts a claim for negligence, alleging that Defendant failed to keep its premises safe and failed to remove a hazard, and Rogers asserts a claim for loss of consortium.

On August 19, 2013, Defendant removed the DeKalb County action to this Court based on diversity of citizenship jurisdiction. (Notice of Removal [1]).

On February 14, 2014, Defendant moved for summary judgment. Defendant asserts that it maintains a reasonable inspection procedure, that the procedure was in place at the time of King's fall, and that a Wal-Mart employee actually inspectedthe area of King's fall within fifteen (15) to twenty (20) minutes of the accident and did not observe anything on the floor near where King fell.

II. DISCUSSION

A. Legal Standard on Summary Judgment

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. Legal Standard on 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)).

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."). Put another way, "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)). "[I]n 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 knowledgeof the hazard despite the exercise of ordinary care due to the actions or conditions within the control of the owner/occupier." Robinson v. Kroger, 493 S.E.2d 403, 414 (Ga. 1997); see also Am. Multi-Cinema, 679 S.E.2d at 27-28.

C. Analysis

It is undisputed that Defendant did not have actual knowledge of the spilled liquid that allegedly caused King's fall. Plaintiffs argue only that Defendant had constructive knowledge of the hazard or that there is, at least, an issue of fact whether Defendant had constructive knowledge.

A plaintiff alleging constructive knowledge of a hazard must show that (1) an employee was in the immediate vicinity and easily could have seen and removed the substance; or (2) that the substance had been on the floor for a sufficient length of time that the defendant should have discovered and removed it during a reasonable inspection. Deborde v. KFC U.S. Properties, Inc., No. 1:05-cv-1228-JOF, 2007 WL 781881, at *2 (N.D. Ga. Mar. 12, 2007) (citing Medders v. Kroger, 572 S.E.2d 386, 388 (Ga. Ct. App. 2002)); see also Brown v. Host/Taco Venture, 699 S.E.2d 439, 442 (Ga. Ct. App. 2010); Matthews v. The Varsity, Inc., 546 S.E.2d 878, 880 (Ga. Ct. App. 2001); Roberson v. Winn-Dixie Atlanta, Inc., 544 S.E.2d 494, 495 (Ga. Ct. App. 2001). "Constructive knowledge may be inferred when there is evidence that the owner lacked a reasonableinspection procedure." Kauffman v. Eastern Food & Gas, Inc., 539 S.E.2d 599, 601 (Ga. Ct. App. 2000).

"In order to prevail at summary judgment based on lack of constructive knowledge, the owner must demonstrate not only that it had a reasonable inspection program in place, but that such program was actually carried out at the time of the incident." Brown, 699 S.E.2d at 442; see also Webster v. S. Family Markets of Milledgeville N. LLC, No. 5:11-cv-53, 2012 WL 426017, at *5 (M.D. Ga. Feb. 9, 2012) (citing Davis v. Bruno's Supermarkets, Inc., 587 S.E.2d 279 (Ga. Ct. App. 2003)). "[T]o survive a motion for summary judgment, a plaintiff must come forward with evidence that, viewed in the most favorable light, would enable a rational trier of fact to find that the defendant had actual or constructive knowledge of the hazard." Am. Multi-Cinema, 679 S.E.2d at 27-28.

Defendant argues that it is entitled to summary judgment because it did not have constructive knowledge of the spilled liquid. Defendant asserts that it not only maintains a reasonable inspection procedure and that the procedure was in place at the time of King's fall, but that a Wal-Mart employee actually inspected the area of King's fall fifteen to twenty minutes before the accident and did not observe spilled liquid on the floor. Defendant relies on the affidavit and deposition testimonies of Saliou Gaye, a Wal-Mart employee who was working as a shiftmanager the day of King's accident. (Gaye Aff. [21.3]; Gaye Dep. [30]). Gaye testified in his affidavit that Wal-Mart employees are instructed to engage in a practice called "zone defense" or "zoning," which requires employees to "constantly be[] aware of what is going on in the area and to look for any potential hazards that would endanger a customer or fellow associate and correct them when found." (Gaye Aff. ¶ 4). Gaye stated that "[z]oning essentially means to keep the store clean and neat," including by "walk[ing] up and down the aisles to make sure the aisle is free of any potential hazards," and "looking for foreign substances on the floor." (Id.). Gaye testified that he engaged in...