Long v. R&L Foods LLC
MEMORANDUM OPINION AND ORDER directing that R&L Foods's 20 Motion for Summary Judgment is GRANTED in part and DENIED in part as follows: (1) With respect to Counts I and II of Ms. Long's complaint, the motion is GRANTED; (2) With respect to Count III of Ms. Long's complaint, the motion is DENIED; (3) This case is REMOVED from the trial docket and CONTINUED generally; and (4) Defendant is granted leave to supplement its motion for summary judgment on or before March 6, 2013. Signed by Chief Judge William Keith Watkins on 2/26/13. (scn, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
R & L FOODS, LLC,
CASE NO. 2:12-CV-29-WKW
MEMORANDUM OPINION AND ORDER
This straightforward slip-and-fall case arose when Plaintiff Carolyn Long fell
and broke her hip at a Wendy’s restaurant. Ms. Long claims Defendant R & L Foods,
LLC, should pay for her injuries because restaurant employees failed to clean up an
alleged slippery substance that caused her fall. She brings this action to recover for
her injuries. R & L Foods, contending Ms. Long cannot show a genuine dispute of
any material fact, moved for summary judgment.
(Doc. # 20.)
consideration of the parties’ arguments (Docs. # 21, 33, 37) and the relevant law,
summary judgment on all counts is not warranted here.
I. JURISDICTION AND VENUE
The court has jurisdiction over the subject matter of this case pursuant to 28
U.S.C. § 1332(a) and 28 U.S.C. § 1441(a). The parties contest neither personal
jurisdiction nor venue.
II. STANDARD OF REVIEW
To succeed on summary judgment, the movant must demonstrate “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). The court must view the evidence and the
inferences from that evidence in the light most favorable to the nonmovant.
Jean-Baptiste v. Gutierrez, 627 F.3d 816, 820 (11th Cir. 2010).
The party moving for summary judgment “always bears the initial
responsibility of informing the district court of the basis for its motion.” Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). This responsibility includes identifying
the portions of the record illustrating the absence of a genuine dispute of material
fact. Id. If the movant meets its evidentiary burden, the burden shifts to the
nonmoving party to establish – with evidence beyond the pleadings – that a genuine
dispute material to each of its claims for relief exists. Id. at 324. A genuine dispute
of material fact exists when the nonmoving party produces evidence allowing a
reasonable fact-finder to return a verdict in its favor. Waddell v. Valley Forge Dental
Assocs., 276 F.3d 1275, 1279 (11th Cir. 2001).
III. FACTUAL AND PROCEDURAL BACKGROUND
One spring day last year, Plaintiff Carolyn Long stepped into a crowded
Wendy’s restaurant during the lunch hour to use the facilities. She did not get far,
however, before she slipped and fell, breaking her hip. Ms. Long does not know what
she slipped on. But she admits she never saw any water on the floor (or any other
substance, for that matter) that might have caused her fall.
As Ms. Long remembers it, the weather was dry that day. (Doc. # 20-1, at 17.1)
A cook at the restaurant, however, remembers that it had rained earlier that morning,
though the rain had stopped by 9:00 a.m. (Doc. # 33-3, at 9–10.) There is no
evidence the cook knew if the ground outside was still wet when Ms. Long came into
the restaurant. No one saw anything on the floor that might have caused Ms. Long
to slip, not even the assistant manager on duty who checked the floor immediately
after the fall. (Doc. # 33, at 6.)
Summary judgment is due on Ms. Long’s premises liability claims.
The first two counts of Ms. Long’s complaint proceed on a theory of premises
liability, which would require her to prove three elements at trial: “ that her fall
resulted from a defect or instrumentality located on the premises,  that the fall was
a result of [R&L Foods’] negligence, and  that [R&L Foods] had or should have
All evidentiary citations refer to the page numbers assigned by the court’s electronic
case management system, not the numbering of the original document.
had notice of the defect or instrumentality before the accident.” Logan v. Winn-Dixie
Atlanta, Inc., 594 So. 2d 83, 84 (Ala. 1992). Ms. Long cannot get past the first.
Much of the evidence Ms. Long cites in opposition to summary judgment is
little more than speculation. For example, when pressed at his deposition, the cook
admitted “it was possible that water got tracked inside.” (Doc. # 33, at 2.) But a
thoughtful deponent must virtually always give an affirmative answer to a question
beginning with ‘is it possible that.” As Judge Posner has noted, “[T]here are no
metaphysical certainties.” Welge v. Planters Lifesavers Co., 17 F.3d 209, 211 (7th
Cir. 1994) (recognizing a possibility that “elves may have played ninepins with [a]
jar of peanuts while [the plaintiff and his roommate] were sleeping”). But that is why
Ms. Long must show more than “some metaphysical doubt as to the material facts”
if she hopes to defeat summary judgment. Matsushita Elec. Indus. Co., 475 U.S. 574,
586 (1986). All this to say, Ms. Long cannot create a triable issue of fact that water
got tracked into the store by pressing a deponent who lacks any firsthand knowledge
into admitting the possibility.
Other than evidence of what certain witnesses think is possible, Ms. Long only
has one piece of evidence from which it might be suggested there may have been a
slippery substance on the floor of the restaurant when she fell: the cook’s testimony
that it had rained earlier that morning. That evidence, standing alone, cannot defeat
summary judgment; otherwise, every fall on a rainy day would present a triable claim
for premises liability. The cook’s testimony, which does not indicate that it was
raining when Ms. Long entered the restaurant – or even that the ground outside was
still wet at the time – is insufficient evidence for a reasonable jury to conclude the
restaurant floor was wet.
Ms. Long does, however, suggest direct evidence that might be sufficient to
defeat summary judgment if only it were admissible. Ms. Long claims that “she was
informed by the paramedics that attended her injuries that water was present all over
the area where she fell.” (Doc. # 33, at 2.) But that statement is inadmissible hearsay,
see Fed. R. Evid. 802, and counsel for Ms. Long informed the court at the pretrial
hearing that the paramedics no longer recall the incident and cannot be witnesses.
Thus, no admissible evidence suggests anyone ever saw anything that might have
caused Ms. Long to slip and fall.
Ms. Long has not submitted sufficient evidence in support of her premisesliability claims to show there exists a genuine issue of material fact. Accordingly,
summary judgment is proper on Counts I and II.
Ms. Long’s negligent hiring, training, and supervision claim survives.
Count III of Ms. Long’s complaint does not proceed on a theory of premises
liability – at least, not directly. Instead, Ms. Long’s third cause of action proceeds on
a theory of “negligent hiring, training and supervision.” (Doc. # 1-5, at 4.) Although
this theory is obviously similar to Ms. Long’s premises-liability claims, it is distinct
in important respects. For instance, Counts I and II accuse R & L Foods of breaching
a “duty to keep its premises in a reasonabl[y] safe condition” (Doc. # 1-5 ¶¶ 14, 18),
while Count III alleges R&L Foods breached a “duty to hire, train, supervise, and/or
monitor its agent(s), and employee(s) on keeping reasonably safe premises for
persons shopping thereon” (Doc. # 1-5 ¶ 24).
On summary judgment, the movant “always bears the initial responsibility of
informing the district court of the basis for its motion.” Celotex Corp., 477 U.S. at
323. As discussed above, R & L Foods’ motion met that burden on Counts I and II
by setting out the elements of proof for Ms. Long’s premises liability claims,
identifying which element she could not prove, and explaining why not with citations
R & L Foods’ motion does not, however, do more than mention Ms. Long’s
other theory, and that only once. In fact, this is all R & L Foods’ motion has to say
on the subject: “Plaintiff filed her First Amended Complaint . . . asserting the
following theories of liability . . . Count Three – Negligence in the hiring, training
and supervision of defendant’s employees on keeping reasonably safe premises for
persons shopping thereon.” (Doc. # 21, at 2–3.) The motion does not identify the
elements of proof for Count III; it does not identify which element Ms. Long cannot
prove; it does not explain why not; and it cites no authority to that effect.
That is not to say the court is blind to the implications of its ruling on Ms.
Long’s premises liability claims. Because Ms. Long, has not presented sufficient
evidence to show R & L Foods’ premises were actually unsafe, it is hard to imagine
how she could prove her injuries were cause by the negligent hiring, training, and
supervision she alleges. But it is not the court’s role to make arguments in support
of R & L Foods’ motion. Because nothing in the motion for summary judgment
informs the court of a proper basis for summary judgment on Count III, the motion
is due to be denied to the extent it seeks such relief.
It is therefore ORDERED that R & L Foods’s Motion for Summary Judgment
(Doc. # 20) is GRANTED in part and DENIED in part as follows:
With respect to Counts I and II of Ms. Long’s complaint, the motion is
With respect to Count III of Ms. Long’s complaint, the motion is
This case is REMOVED from the trial docket and CONTINUED
Defendant is granted leave to supplement its motion for summary
judgment on or before March 6, 2013.
DONE this 26th day of February, 2013.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE
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