Rosemary Wright, et al v. Dish Network, LLC, et al

Filing

Opinion issued by court as to Appellants Claude Wright and Rosemary Wright. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 16-17740

Date Filed: 11/02/2017

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-17740
Non-Argument Calendar
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D.C. Docket No. 4:15-cv-00167-HLM

ROSEMARY WRIGHT,
CLAUDE WRIGHT,
Plaintiffs - Appellants,
versus
DISH NETWORK, LLC,
DISH NETWORK SERVICE, LLC,
DISHNET SATELLITE BROADBAND, LLC,
Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(November 2, 2017)
Before HULL, WILSON, and BLACK, Circuit Judges.
PER CURIAM:

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Rosemary Wright (Rosemary) and Claude Wright (Claude) appeal the
district court’s grant of summary judgment in favor of DISH Network, LLC, DISH
Network Service, LLC, and dishNET Satellite Broadband, LLC with respect to
Rosemary’s negligence claim, Claude’s loss of consortium claim, and the Wrights’
punitive damages claim. On appeal, the Wrights assert their allegation of
causation as to Rosemary’s negligence claim is not mere speculation, and contend
the district court erred by granting summary judgment on their remaining claims
based on its grant of summary judgment with respect to the negligence claim.
After review,1 we affirm.
I. BACKGROUND
This case arises out of a trip-and-fall incident that occurred on the Wrights’
property on August 21, 2013. On August 4, 2013, the Wrights entered into an
agreement with DISH Network under which DISH Network would provide high
speed internet service. The same day, a DISH Network Service employee entered
the Wrights’ property to install new or upgraded equipment. Seventeen days later,
while either placing a garbage can near her house or taking out the trash, Rosemary
tripped and fell onto her left side, injuring her leg.

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“We review a district court’s grant of summary judgment de novo, viewing all the
evidence, and drawing all reasonable factual inferences, in favor of the nonmoving party.”
Stephens v. Mid-Continent Cas. Co., 749 F.3d 1318, 1321 (11th Cir. 2014).
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In 2015, the Wrights filed a complaint in state court against DISH Network,
DISH Network Service, and dishNET Satellite Broadband, alleging Rosemary had
tripped over a wire left on the Wrights’ property by the DISH Network Service
employee. Rosemary asserted a claim for negligence, and Claude asserted a claim
for loss of consortium. The Wrights also alleged a claim for punitive damages.
The defendants removed the action to federal court, where it proceeded to
discovery.
In her deposition, Rosemary testified that, while taking out the trash one
afternoon, her left shoe caught on a wire on the ground, causing her to trip and fall.
Rosemary was not looking down as she approached the trash can, and she did not
see a wire at any point while she was outside. She also did not feel a wire as she
tripped, and she was unaware of how the wire was positioned when she fell.
Rosemary first heard about a wire later that day when Claude said she had tripped
over it.
Claude testified he observed the DISH Network Service employee who
came to upgrade the Wrights’ internet. Extending out from the Wrights’ house
was a green wire, which Claude saw the employee cut. Claude stated the
employee “undoubtedly thr[ew] [the green wire] over where the garbage cans
were” after cutting it. Claude also testified the employee “took the green wire
loose from the old system and it was throw[n] back.” Claude admitted he did not
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see Rosemary fall. Rosemary told him she tripped on something, but did not
mention a wire. Claude first saw the wire the following morning.
The defendants moved for summary judgment. In their response to the
defendants’ statement of material facts, the Wrights admitted there was a ground
rod, a garbage can, a rock or a piece of newspaper, and an area where the ground
changed to a paved driveway around where Rosemary fell. The Wrights also
conceded neither DISH Network nor dishNET Satellite Broadband employed the
individual who performed the equipment installation at their house.
The district court granted summary judgment in favor of the defendants.
First, the district court concluded DISH Network and dishNET Satellite Broadband
were entitled to summary judgment because they did not employ or have a
contractual relationship with the DISH Network Service employee who allegedly
left the green wire on the ground. The district court further determined
Rosemary’s testimony that her foot became caught in the wire was selfcontradictory and therefore disregarded it. Because the Wrights offered only
speculation as to the cause of Rosemary’s fall, the district court concluded DISH
Network Service was entitled to summary judgment on Rosemary’s negligence
claim. Finally, the district court granted summary judgment in favor of the
defendants on Claude’s loss of consortium claim and the Wrights’ punitive
damages claim because both were derivative of Rosemary’s right to recover for her
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injury. Accordingly, the district court entered judgment in favor of the defendants.
This appeal followed.
II. DISCUSSION
Summary judgment is appropriate when the movant demonstrates that there
is no genuine issue of material fact and it is entitled to judgment as a matter of law.
Stephens v. Mid-Continent Cas. Co., 749 F.3d 1318, 1321 (11th Cir. 2014). Once
the movant submits a properly supported motion for summary judgment, “the
burden shifts to the nonmoving party to show that specific facts exist that raise a
genuine issue for trial.” Id. (quoting Dietz v. Smithkline Beecham Corp., 598 F.3d
812, 815 (11th Cir. 2010)). “Where the record taken as a whole could not lead a
rational trier of fact to find for the nonmoving party, there is ‘no genuine issue for
trial.’” Scott v. Harris, 550 U.S. 372, 380, 127 S. Ct. 1769, 1776 (2007) (quoting
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct.
1348, 1356 (1986)).
In trip-and-fall cases where liability is premised on a third party creating a
hazard on the plaintiff’s property, traditional negligence principles apply. 2 See
Fitzgerald v. Storer Cable Commc’ns, Inc., 446 S.E.2d 755, 756–57 (Ga. Ct. App.
1994). To establish liability based on negligence, the plaintiff must show that
(1) “the defendant had a legal duty to protect the plaintiff from a foreseeable risk of
2

Federal courts sitting in diversity apply the substantive law of the forum state.
Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 427, 116 S. Ct. 2211, 2219 (1996).
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the alleged harm,” (2) “the defendant’s act or omission breached this duty,” and
(3) “there exists a causal connection between the defendant’s conduct and the
alleged injury sufficient to show that the conduct proximately caused the injury.”
Id. at 757 (quoting Leonardson v. Ga. Power Co., 436 S.E.2d 690, 692 (Ga. Ct.
App. 1993), superseded on other grounds by statute, Ga. L. 1992, p. 2141, § 1).
The district court properly granted summary judgment in favor of the
defendants as to Rosemary’s negligence claim. First, the Wrights conceded neither
DISH Network nor dishNET Satellite Broadband employed the individual who
went to the Wrights’ house and allegedly threw the green wire toward the garbage
can. Accordingly, Rosemary cannot show that these defendants had a legal duty to
protect her from a foreseeable risk of the alleged harm, that the defendants
breached this duty, or the existence of a causal connection between the defendants’
actions and her injury. Id.
Assuming arguendo that Rosemary sufficiently established the first two
elements of a negligence claim against DISH Network Service, the record as a
whole still could not lead a rational jury to find a causal connection between the
DISH Network Service employee’s alleged conduct and Rosemary’s injury. See
Scott, 550 U.S. at 380, 127 S. Ct. at 1776; Fitzgerald, 446 S.E.2d at 757. Although
she testified her left shoe caught in a wire, Rosemary did not see a wire outside,
nor did she feel a wire as she tripped. Her testimony that she tripped over the wire
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is mere speculation. Claude also could not provide any direct evidence as to the
cause of Rosemary’s fall because he did not witness the incident. Rather, Claude
simply saw a wire on the ground later that day or the following day and assumed
Rosemary tripped over it.
Moreover, the Wrights admitted there were other items in the area which
may have caused Rosemary’s fall, including a ground rod, a garbage can, a rock or
a piece of newspaper, and an area where the ground changed to a paved driveway.
Each presented a potential hazard, and there is no evidence in the record
suggesting it is more likely Rosemary tripped over the wire than any of the other
objects.
Citing J.H. Harvey Co. v. Reddick, 522 S.E.2d 749 (Ga. Ct. App. 1999), the
Wrights contend a reasonable jury could infer the wire allegedly thrown by the
DISH Network Service employee caused Rosemary’s fall. In J.H. Harvey, a
premises liability case, the plaintiff allegedly slipped on scuppernongs on the floor
of a grocery store. 522 S.E.2d at 751. As she was getting up, the plaintiff noticed
two scuppernongs on the floor next to her. Id. An assistant manager also saw two
scuppernong skins on the floor where the plaintiff fell. Id. The plaintiff stated she
slipped on “something slippery,” but she did not know if she had stepped on the
scuppernongs or if they caused her to fall. Id. She did not recall seeing anything
else on the floor that could have caused her to fall. Id. The Court of Appeals of
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Georgia concluded summary judgment was inappropriate because reasonable
jurors could infer from the above evidence that the scuppernongs caused the
plaintiff’s fall. Id. at 752.
Here, by contrast, Rosemary did not see a wire on the ground at any point or
feel the wire as she tripped, and Claude only discovered the wire later that day or
the next day. Moreover, as discussed above, other objects in the area could have
caused Rosemary to trip and fall. The Wrights’ speculation that Rosemary tripped
over the wire, rather than anything else in the area, is insufficient to create a
genuine issue of fact as to whether there was a causal connection between the
DISH Network Service employee’s conduct and Rosemary’s injury. See Cordoba
v. Dillard’s, Inc., 419 F.3d 1169, 1181 (11th Cir. 2005) (“Speculation does not
create a genuine issue of fact.”); see also Pennington v. WJL, Inc., 589 S.E.2d 259,
262 (Ga. Ct. App. 2003) (“A mere possibility of causation [in a trip-and-fall case]
is not enough and when the matter remains one of pure speculation or conjecture
and the probabilities are at best evenly balanced it is appropriate for the court to
grant summary judgment to the defendant.”).
Because summary judgment was appropriate with respect to Rosemary’s
negligence claim, summary judgment also was warranted as to Claude’s loss of
consortium claim and the Wrights’ claim for punitive damages, given that both
claims were derivative of Rosemary’s negligence claim. See D.G. Jenkins Homes,
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Inc. v. Wood, 582 S.E.2d 478, 482 (Ga. Ct. App. 2003) (stating that a claim for
punitive damages is a derivative claim); Supchak v. Pruitt, 503 S.E.2d 581, 584
(Ga. Ct. App. 1998) (“[O]ne spouse’s claim for the loss of the other spouse’s
society or consortium is a derivative one stemming from the right of the other
spouse to recover for his injuries.”).
III. CONCLUSION
Summary judgment was warranted as to Rosemary’s negligence claim
because she failed to establish any of the elements of a negligence claim with
respect to DISH Network and dishNET Satellite Broadband, and a reasonable jury
could not find a causal connection between the DISH Network Service employee’s
alleged conduct and Rosemary’s injury. The Wrights’ remaining claims fail
because they were derivative of Rosemary’s negligence claim. Accordingly, the
judgment of the district court is
AFFIRMED.

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