Patrick v. Publix Super Markets, Inc.

• Decision Date: 28 March 2017
• Docket Number: CIVIL ACTION NO. 16-00150-N
• Parties: JACQUELINE PATRICK, Plaintiff, v. PUBLIX SUPER MARKETS, INC., Defendant.
• Court: U.S. District Court — Southern District of Alabama

JACQUELINE PATRICK, Plaintiff, v. PUBLIX SUPER MARKETS, INC., Defendant.

CIVIL ACTION NO. 16-00150-N

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

March 28, 2017

ORDER

This action is before the Court on the Motion for Summary Judgment under Federal Rule of Civil Procedure 56 (Doc. 40) and separate memorandum and exhibits in support (Doc. 41) filed by Defendant Publix Super Markets, Inc. ("Publix"). Plaintiff Jacqueline Patrick has timely filed a response (Doc. 44), supported by exhibits, in opposition to the motion, and Publix has timely filed a reply and supporting exhibits (Doc. 45) to the response. The motion is now under submission (see Doc. 43) and is ripe for disposition.

With the consent of the parties, the Court has designated the undersigned Magistrate Judge to conduct all proceedings in this civil action, in accordance with 28 U.S.C. § 636(c), Federal Rule of Civil Procedure 73, and S.D. Ala. GenLR 73. (See Docs. 12, 14). Upon consideration, the Court finds that Publix's Motion for Summary Judgment (Doc. 40) is due to be GRANTED.

I. Summary Judgment Analytical Framework

"A party may move for summary judgment, identifying each claim or defense--or the part of each claim or defense--on which summary judgment is sought. The 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). "An issue of fact is 'material' if it might affect the outcome of the suit under governing law and it is 'genuine' if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Ave. CLO Fund, Ltd. v. Bank of Am., N.A., 723 F.3d 1287, 1294 (11th Cir. 2013) (quotations omitted). "Summary judgment is only appropriate if a case is 'so one-sided that one party must prevail as a matter of law.' " Quigg v. Thomas Cty. Sch. Dist., 814 F.3d 1227, 1235 (11th Cir. 2016) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)) (citation omitted). However, a " 'mere scintilla' of evidence is insufficient; the non-moving party must produce substantial evidence in order to defeat a motion for summary judgment." Garczynski v. Bradshaw, 573 F.3d 1158, 1165 (11th Cir. 2009) (per curiam). In other words, "there must be enough of a showing that the jury could reasonably find for that party ... Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997) (quotations omitted).

"[C]ourts are required to view the facts and draw reasonable inferences in the light most favorable to the party opposing the summary judgment motion." Jackson v. West, 787 F.3d 1345, 1352 (11th Cir. 2015) (quoting Scott v. Harris, 550 U.S. 372, 378 (2007) (alteration adopted) (quotations omitted)). See also Allen, 121 F.3d 642, 646 (11th Cir. 1997) ("The evidence of the non-movant is to be believed,and all justifiable inferences are to be drawn in his favor." (quotations omitted)). "The Court 'must avoid weighing conflicting evidence or making credibility determinations.' " Ave. CLO Fund, 723 F.3d at 1294 (quoting Stewart v. Booker T. Washington Ins., 232 F.3d 844, 848 (11th Cir. 2000)). However, " 'an inference based on speculation and conjecture is not reasonable.' " Id. (quoting Blackston v. Shook & Fletcher Insulation Co., 764 F.2d 1480, 1482 (11th Cir. 1985)).

"Where, as here, the non-moving party bears the burden of proof on an issue at trial, the moving party, in order to prevail, must do one of two things: show that the non-moving party has no evidence to support its case, or present 'affirmative evidence demonstrating that the nonmoving party will be unable to prove its case at trial.' " Hammer v. Slater, 20 F.3d 1137, 1141 (11th Cir. 1994) (quoting United States v. Four Parcels of Real Property, 941 F.2d 1428, 1437-38 (11th Cir. 1991) (en banc)). "Once the movant adequately supports its motion, the burden shifts to the nonmoving party to show that specific facts exist that raise a genuine issue for trial." Dietz v. Smithkline Beecham Corp., 598 F.3d 812, 815 (11th Cir. 2010). "For issues on which the non-moving party will bear the burden of proof at trial, the non-moving party must either point to evidence in the record or present additional evidence 'sufficient to withstand a directed verdict motion at trial based on the alleged evidentiary deficiency.' " Hammer, 20 F.3d at 1141 (quoting Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1116 (11th Cir. 1993)).

"A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record, includingdepositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1). "The nonmoving party may avail itself of all facts and justifiable inferences in the record taken as a whole." Allen, 121 F.3d at 646 (quotation omitted). "If reasonable minds could differ on the inferences arising from undisputed facts, then a court should deny summary judgment." Id. (quotation omitted). "Conclusory allegations and speculation are insufficient to create a genuine issue of material fact." Valderrama v. Rousseau, 780 F.3d 1108, 1112 (11th Cir. 2015) (citing Cordoba v. Dillard's Inc., 419 F.3d 1169, 1181 (11th Cir. 2005) ("Speculation does not create a genuine issue of fact; instead, it creates a false issue, the demolition of which is a primary goal of summary judgment.")).

Importantly, " '[t]here is no burden upon the district court to distill every potential argument that could be made based on the materials before it on summary judgment. Rather, the onus is upon the parties to formulate arguments; grounds alleged in the complaint but not relied upon in summary judgment are deemed abandoned.' " Solutia, Inc. v. McWane, Inc., 672 F.3d 1230, 1239 (11th Cir. 2012) (per curiam) (quoting Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995) (en banc)). Relatedly, while "it may consider other materials in the record[,]" the "court need consider only the cited materials..." Fed. R. Civ. P.56(c)(3) (emphasis added).

II. Analysis

Patrick's complaint alleges, in sum, that she was injured on March 10, 2014, when she slipped and fell while shopping at a grocery store in Spanish Fort, Alabama, owned and operated by Publix. Viewed in the light most favorable to Patrick, the evidence presented on summary judgment indicates that Patrick slipped on a clear liquid near the entrance to the store's produce section. Patrick alleges causes of action for negligence (Count One) and wantonness (Count Two) against Publix arising from the incident. (See Doc. 1-1). Publix has moved for summary judgment on both.

A. Negligence

Under Alabama law,¹ to " 'establish negligence, a plaintiff must prove: (1) aduty to a foreseeable plaintiff; (2) a breach of that duty; (3) proximate causation; and (4) damage or injury.' " Jones Food Co. v. Shipman, 981 So. 2d 355, 361 (Ala. 2006) (quoting Martin v. Arnold, 643 So. 2d 564, 567 (Ala.1994), and Albert v. Hsu, 602 So. 2d 895, 897 (Ala. 1992)). Here, it is uncontested that Patrick's alleged injuries occurred while she was shopping at Publix's grocery store.

Under Alabama law, a person invited onto another's premises for commercial purposes is an invitee. See Ex parte Mountain Top Indoor Flea Market, Inc., 699 So. 2d 158, 161 (Ala. 1997). The duty owed by the invitor to an invitee is to exercise ordinary and reasonable care to keep the premises in a reasonably safe condition. Winn-Dixie v. Godwin, 349 So. 2d 37 (Ala. 1977). The party who controls the premises is not an insurer of the safety of the invitee, and no presumption of negligence arises from the mere fact of an injury to the invitee. See Great Atl. & Pac. Tea Co. v. Bennett, 267 Ala. 538, 103 So. 2d 177 (1958).

Id. See also Kmart Corp. v. Bassett, 769 So. 2d 282, 284-85 (Ala. 2000) ("[A] premises owner is liable in negligence only if it 'fail[s] to use reasonable care in maintaining its premises in a reasonably safe manner.' " (quoting Hose v. Winn-Dixie Montgomery, Inc., 658 So. 2d 403, 404 (Ala. 1995)). "[M]ere proof of an accident or injury is not enough to establish negligence." Knox v. United States of America, 978 F. Supp. 2d 1203,1209 (M.D. Ala. 2013).

For a claim of negligence against a business invitor, "injured 'plaintiffs must prove that the injury was proximately caused by the negligence of [the store owner] or one of its servants or employees. Actual or constructive notice of the presence of the substance [or instrumentality that caused the injury] must be proven before [thestore owner] can be held responsible for the injury.' " Denmark v. Mercantile Stores Co., 844 So. 2d 1189, 1192 (Ala. 2002) (quoting Maddox v. K-Mart Corp., 565 So. 2d 14, 16 (Ala. 1990)). "Actual or constructive notice" may be proved by showing " '(1) that the substance slipped upon had been on the floor a sufficient length of time to impute constructive notice to [the storekeeper]; or (2) that [the storekeeper] had actual notice that the substance was on the floor; or (3) that [the storekeeper] was delinquent in not discovering and removing the substance.' " East v. Wal-Mart Stores, Inc., 577 So. 2d 459, 461 (Ala. 1991) (quoting Maddox, 565 So. 2d at 16). "Where, however, the defendant or his employees have affirmatively created the dangerous condition, the plaintiff need not introduce evidence that the defendant had actual or constructive knowledge of the hazard. Under such...