Carter v. Walgreens Specialty Pharmacy LLC

Filing 37

MEMORANDUM OPINION. Signed by Judge R David Proctor on 6/15/2018. (JLC)

FILED
2018 Jun-15 PM 03:53
U.S. DISTRICT COURT
N.D. OF ALABAMA

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

JILLIAN M CARTER,

}
}
Plaintiff,
}
}
v.
}
}
WALGREENS SPECIALTY PHARMACY }
LLC,
}
}
Defendants.

Case No.: 2:17-cv-00003-RDP

MEMORANDUM OPINION
This case is before the court on the Motion for Summary Judgment filed by Defendant
Walgreen Co. (“Walgreen” or “Defendant”). (Doc. # 26). The Motion is fully briefed, and
Defendant has filed evidentiary submissions. (Docs. # 26, 27, 31, 33). After careful review, the
court concludes that the Motion for Summary Judgment (Doc. # 26) is due to be granted.
I.

Relevant Undisputed Facts1
On January 17, 2015, Jillian Carter (“Plaintiff”) was a business invitee at the Walgreen

store located on 4496 Valleydale Road, Birmingham, Alabama 35292. (Docs. # 26 at ¶ 1; 27-1
at p. 9). Around mid-morning, Plaintiff entered the store alone to purchase diaper rash cream for
her young daughter. (Doc. # 27-1 at p. 9). There was nothing unusual about the lighting in the
store. (Id. at p. 10). Plaintiff’s husband and two daughters waited in the car so the purchase

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The facts set out in this opinion are gleaned from the parties’ submissions of facts claimed to be
undisputed, their respective responses to those submissions, and the court’s own examination of the evidentiary
record. All reasonable doubts about the facts have been resolved in favor of the nonmoving party. See Info. Sys. &
Networks Corp. v. City of Atlanta, 281 F.3d 1220, 1224 (11th Cir. 2002). These are “facts” for summary judgment
purposes only. They may not be the actual facts that could be established through live testimony at trial. See Cox v.
Admr. U.S. Steel & Carnegie Pension Fund, 17 F.3d 1386, 1400 (11th Cir. 1994).

could be made “quickly.” (Id. at p. 9). Plaintiff had previously been to the Valleydale Road
Walgreen store “six or seven times.” (Id.).
Plaintiff was in the store approximately five minutes before she located the rash cream.
(Id. at p. 10). She found the cream on the top shelf but did not consider the shelf high. (Id.). As
Plaintiff was reaching towards the top shelf, she slipped and fell. (Id.). While slipping, Plaintiff
grabbed a shelf to break her fall. (Id.). Although half of her calf on her left leg hit the ground,
Plaintiff did not fall to the ground because she was supporting the rest of her body with the shelf
onto which she was holding. (Id.).
After catching herself, Plaintiff claims she noticed what she described as “clear beads” on
the floor. (Id. at p. 11). Apparently, the substance on the floor was Epsom salt. (Id.). Plaintiff
claims the Epsom salt was difficult to see and testified the substance could only be seen if
“stepped in.” (Id. at p. 12). She does not know how long the substance was on the floor prior to
her fall. (Id. at p. 12-13). Plaintiff did not see dirt in the Epsom salt that would indicate that the
substance had been on the floor for an extended period, and she did not notice any evidence that
the substance had previously been stepped in by another customer. (Id. at p. 13). Plaintiff does
not dispute that Defendant did not have notice that any substance was on the floor prior to her
incident. (Docs. # 26 at ¶ 19; 27-2 at ¶ 6; 31 at p. 1-2).
Following her slip, Plaintiff notified a Walgreen employee that she “had slipped and
practically fallen but was able to catch [her]self.” (Doc. # 27-1 at p. 13). The employee
apologized and said that she would inform the manager. (Id.). Plaintiff then left the store and
returned to her car. (Id. at p. 11). After speaking to her husband, talking to her mother on the
phone, and speaking with the on-call physician at her doctor’s office, Plaintiff returned to the
store approximately ten minutes later to make a report of the incident. (Id. at p. 11, 14). When

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Plaintiff returned to the store, the Epsom salt had not been removed and no warning sign had
been placed around the spill. (Id. at p. 11).
On January 3, 2017, Plaintiff filed her Complaint alleging (1) negligence, (2)
recklessness and wantonness, and (3) premises liability. (Doc. # 1). The case was assigned to
the undersigned and designated case number 2:17-cv-00003-RDP. Plaintiff did not pay the filing
fee associated with this action. Instead, on January 16, 2017, Plaintiff again filed her Complaint,
and it was designated as a separate action under case number 2:17-cv-00070-SGC. (See 2:17-cv00070-SGC, Doc. # 1). Plaintiff paid a filing fee contemporaneously with her second complaint.
On January 20, 2017, Plaintiff filed a request for service by certified mail in Case 2:17-cv00070-SGC. (2:17-cv-00070-SGC, Doc. # 3). However, on January 24, 2017, the court entered
an order directing the Clerk of the Court to apply the filing fee from the second action to this
earlier-filed action and directing the clerk to close the second action. (2:17-cv-00070-SGC, Doc.
# 2). Thereafter, Plaintiff filed a request for service by certified mail in this action on February
20, 2017, and a summons was issued on March 13, 2017. (Docs. # 3, 4).
On April 17, 2017, Defendant moved to dismiss this action on statute of limitations
grounds. (Doc. # 9). The court denied Defendants’ Motion to Dismiss on May 12, 2017 and
stated the following:
This black letter law demonstrates the benefit of assessing a
plaintiff’s intent to serve the complaint on a motion for summary
judgment, rather than a motion to dismiss. However, as the court
expressed during the hearing on this matter, the record before the
court on Defendant’s motion to dismiss certainly indicates that
there existed a bona fide intent to immediately serve the complaint
in this action.
(Doc. # 17 at p. 5). On February 21, 2018, Plaintiff filed the instant Motion for Summary
Judgment, which argues that Plaintiff has failed to establish substantial evidence of her claims
and that her claims are barred by the statute of limitations.
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(Doc. # 26).

Plaintiff has

“concede[d] that there is no evidence of wanton or reckless conduct.” (Doc. # 31 at p. 6).
Accordingly, her recklessness and wantonness claim (Count II) is due to be dismissed. The court
explores the merits of Plaintiff’s negligence and premises liability claims, in turn.
II.

Summary Judgment Standard
Under Federal Rule of Civil Procedure 56, summary judgment is proper “if the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact and that the moving party is
entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The party asking for summary judgment always bears the initial responsibility of informing the
court of the basis for its motion and identifying those portions of the pleadings or filings which it
believes demonstrate the absence of a genuine issue of material fact. Id. at 323. Once the
moving party has met its burden, Rule 56 requires the non-moving party to go beyond the
pleadings and -- by pointing to affidavits, or depositions, answers to interrogatories, and/or
admissions on file -- designate specific facts showing that there is a genuine issue for trial. Id. at
324.
The substantive law will identify which facts are material and which are irrelevant. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). All reasonable doubts about the facts
and all justifiable inferences are resolved in favor of the non-movant. See Allen v. Bd. of Pub.
Educ. for Bibb Cnty., 495 F.3d 1306, 1314 (11th Cir. 2007); Fitzpatrick v. City of Atlanta, 2 F.3d
1112, 1115 (11th Cir. 1993). A dispute is genuine “if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. If the evidence is
merely colorable, or is not significantly probative, summary judgment may be granted. See id. at
249.

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When faced with a “properly supported motion for summary judgment, [the non-moving
party] must come forward with specific factual evidence, presenting more than mere
allegations.” Gargiulo v. G.M. Sales, Inc., 131 F.3d 995, 999 (11th Cir. 1997). As Anderson
teaches, under Rule 56(c) a plaintiff may not simply rest on his allegations made in the
complaint; instead, as the party bearing the burden of proof at trial, he must come forward with
at least some evidence to support each element essential to his case at trial. See Anderson, 477
U.S. at 252. “[A] party opposing a properly supported motion for summary judgment ‘may not
rest upon the mere allegations or denials of his pleading, but . . . must set forth specific facts
showing that there is a genuine issue for trial.’” Id. at 248 (citations omitted).
Summary judgment is mandated “against a party who fails to make a showing sufficient
to establish the existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial.” Celotex Corp., 477 U.S. at 322. “Summary judgment may be
granted if the non-moving party’s evidence is merely colorable or is not significantly probative.”
Sawyer v. Sw. Airlines Co., 243 F. Supp. 2d 1257, 1262 (D. Kan. 2003) (citing Anderson, 477
U.S. at 250-51).
“[A]t the summary judgment stage the judge’s function is not himself to weigh the
evidence and determine the truth of the matter but to determine whether there is a genuine issue
for trial.” Anderson, 477 U.S. at 249. “Essentially, the inquiry is ‘whether the evidence presents
a sufficient disagreement to require submission to the jury or whether it is so one-sided that one
party must prevail as a matter of law.’” Sawyer, 243 F. Supp. 2d at 1262 (quoting Anderson, 477
U.S. at 251-52); see also LaRoche v. Denny’s, Inc., 62 F. Supp. 2d 1366, 1371 (S.D. Fla. 1999)
(“The law is clear . . . that suspicion, perception, opinion, and belief cannot be used to defeat a
motion for summary judgment.”).

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IV.

Analysis
In order to recover on a negligence claim, a plaintiff must prove a breach of a duty owed

and that the breach proximately caused injury or damage. Lowe’s Home Ctrs., Inc. v. Laxson,
655 So.2d 943, 945-46 (Ala. 1994). In this case, it is undisputed that Plaintiff was a business
invitee at Defendant’s premises. (Docs. # 26 at ¶ 1; 31 at p. 1-2, 5). The duty a premises owner
owes to an invitee is well established: “The duty owed to an invitee by [a business] is the
exercise of ordinary and reasonable care to keep the premises in a reasonably safe condition.”
Cook v. Wal-Mart Stores, Inc., 795 F. Supp. 2d 1269, 1273 (M.D. Ala. 2011) (internal quotations
marks omitted) (quoting Lilya v. Greater Gulf State Fair, Inc., 855 So.2d 1049, 1054 (Ala.
2003)). “As the Alabama Supreme Court has reiterated, ‘[t]he storekeeper is not an insurer of
the customers’ safety but is liable for injury only in the event he negligently fails to use
reasonable care in maintaining his premises in a reasonably safe condition.’” Cook, 795 F. Supp.
2d at 1273 (quoting Dolgencorp, Inc. v. Hall, 890 So.2d 98, 101 (Ala. 2003)).
“To recover in a premises-liability action based on a fall, a plaintiff must prove (1) that
her fall was caused by a defect or instrumentality located on the defendant’s premises, (2) that
the fall was the result of the defendant’s negligence, and (3) that the defendant had or should
have had notice of the defect or instrumentality before the accident.” Shanklin v. New Pilgrim
Towers, L.P., 58 So. 3d 1251, 1255 (Ala. Civ. App. 2010) (citing Logan v. Winn-Dixie Atlanta,
Inc., 594 So. 2d 83, 84 (Ala. 1992)).

Because a business’s liability rests on its superior

knowledge of the danger that causes an invitee’s injury, a business either must have had or
should have had notice of the defect before the accident’s occurrence in order for negligence to
attach. Cook, 795 F. Supp. 2d at 1273 (quoting Hale v. Sequoyah Caverns & Campgrounds,
Inc., 612 So.2d 1162, 1164 (Ala. 1992) and Fowler v. CEC Entm’t, 921 So.2d 428, 432-33 (Ala.

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Civ. App. 2005)). Therefore, actual or constructive notice of the substance must be proven
before a business can be held responsible for an invitee’s injury. Maddox By & Through
Maddox v. K-Mart Corp., 565 So. 2d 14, 16 (Ala. 1990).
In order to establish notice, a plaintiff must prove (1) that the substance on which the
plaintiff slipped had been on the floor for a sufficient length of time to impute constructive notice
to the business, (2) that the business had actual notice that the substance was on the floor, or (3)
that the business was delinquent in not discovering and removing the substance. Id. “If the
business (or one of its employees) creates the dangerous condition, then the business is deemed
to have actual notice of it.” Cook, 795 F. Supp. 2d at 1273. If a plaintiff cannot establish notice,
then a business’s superior knowledge is lacking and that business cannot be held liable for the
plaintiff’s injuries. Id. (quoting Fowler, 921 So.2d at 432-33).
Here, Defendant contends that it is entitled to summary judgment because Plaintiff has
not provided any evidence (much less, substantial evidence) that Walgreen had actual or
constructive notice of the spilled substance. (Doc. # 26). The court agrees with Defendant.
As an initial matter, the court notes that Plaintiff does not dispute that Defendant “did not
have notice that any substance was on the floor prior to the incident.” (Docs. # 26 at ¶ 19; 31 at
p. 1-2). The undisputed fact that Defendant “did not have notice” sufficiently shows that
Plaintiff cannot state a claim for premises liability.

See Cook, 795 F. Supp. 2d at 1273.

Notwithstanding this concession, later in her opposition brief, Plaintiff states that “there are
genuine issues of material fact regarding whether Walgreen[] had notice, either actual or
constructive, of the foreign substance that caused Plaintiff’s fall, or was delinquent in failing to
discover the substance in a reasonable amount of time and remove it.” (Doc. # 31 at p. 5).
Plaintiff does not point to any Rule 56 evidence to support an argument that Defendant had

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actual knowledge of the spill; rather, she bases her opposition on the possibility of constructive
notice.

(Doc. # 31 at p. 6-8).

Accordingly, in the interest of completeness, and despite

Plaintiff’s concession in the undisputed facts section of her opposition brief, the court examines
the record for substantial evidence of constructive notice below.
In support of her contention that Defendant’s constructive notice (or lack thereof) is a
genuine issue of material fact, Plaintiff argues the following:
The fact[s] that no Epsom Salt container was located near the area,
that the Walgreen’s employee did not request to be shown the area
of the floor substance, and that the spilled item was not even
cleaned or a sign put out in the ten minutes after Plaintiff’s fall is
more than substantial evidence from which a juror could infer
Walgreen[] already knew or should have discovered the foreign
substance that was the cause of Ms. Carter’s fall.
(Doc. # 31 at p. 6). Plaintiff also asserts that Defendant had or should have had notice of the
spill because her “entire shoe was completely [covered] in the Epsom Salt” and the spilling of
granules of Epsom salt would have made a noise.2 (Id. at p. 5-6).
Plaintiff’s arguments fail for three main reasons. First, events that occur after a slip and
fall are not relevant to whether Defendant had or should have had notice of the spill before the
incident at issue. Shanklin, 58 So. 3d at 1255 (stating that a plaintiff must prove “that the
defendant had or should have had notice of the defect or instrumentality before the accident” in
order to state a premises liability claim) (emphasis added).
Second, the size of the spill is not indicative of the length of time the substance was
present on the floor. Tidd v. Walmart Stores, Inc., 757 F. Supp. 1322, 1323-24 (N.D. Ala. 1991)
(“The record is devoid of evidence regarding the length of time the spill had been on the floor.
Plaintiff contends that the size of the spill is sufficient in itself to raise a question of fact

2

This noise argument is not only unsupported, it is nonsensical.

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regarding the length of time the spill had been down. The court finds that this fact without more
is not sufficient to create a question of fact. A large spill can be as young as a small spill. A
large spill can be as sudden as a small spill.”). Plaintiff cites Kenney v. Kroger Co., 569 So. 2d
357 (Ala. 1990), (Doc. # 31 at p. 7), but that case does not require a different result. In Kenney, a
plaintiff who had fallen in a puddle of Pine-Sol offered evidence that she was found on the
ground in a pool of Pine-Sol, the “smell of Pine-Sol permeated the area” where she fell, her
clothes were “well saturated” with Pine-Sol after her fall, the isle where she fell had not been
inspected or cleaned in an hour and forty minutes, and an open bottle of Pine-Sol with a missing
cap was on the shelf near where she had fallen. 569 So. 2d at 359. The Alabama Supreme Court
found that there was a question of fact as to how long the Pine-Sol had been on the defendant’s
floor based on Plaintiff’s presented facts because “a reasonable person could conclude that the
length of time necessary for an amount of Pine-Sol to collect in a pool large enough to saturate
the clothing of [the plaintiff’s] back and buttocks area was a sufficient length of time to either
put the defendant on constructive notice that the substance was there or make the defendant
delinquent in not discovering and removing the substance.” Id. But, the facts of Kenney are
easily distinguishable because Plaintiff has not offered Rule 56 evidence of unreasonable or
delinquent inspection or, more generally, that Defendant should have discovered the Epsom salt
prior to her fall. That is, here, there is not the same evidence about volume/saturation suggesting
that the spill was apparent for a lengthy period of time or a pungent smell. Indeed, Plaintiff
herself conceded that the Epsom salt on the floor was difficult to see and it could only be noticed
if one stepped into it. (Doc. # 27-1 at p. 12).
Finally, Plaintiff has not offered any other Rule 56 evidence regarding the length of time
the foreign substance remained on the floor that would allow a reasonable jury to infer that the

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substance was on the floor long enough to place Defendant on constructive notice of the spill.
See Cash v. Winn-Dixie Montgomery, Inc., 418 So. 2d 874, 876 (Ala. 1982) (“In some cases it is
permissible to allow a jury to infer the length of time from the nature and condition of the
substance. This has been allowed where the substance is dirty, crumpled, mashed, or has some
other characteristic which makes it reasonable to infer that the substance has been on the floor
long enough to raise a duty on the defendant to discover and remove it.”). Accordingly, instead
of being comparable to cases such as Kenney, this case more closely aligns to cases where the
Alabama Supreme Court dismissed premises liability claims due to a plaintiff’s failure to present
substantial evidence of actual or constructive notice. See, e.g., East v. Wal-Mart Stores, Inc., 577
So. 2d 459, 460-61 (Ala. 1991) (affirming dismissal of a slip and fall action where the puddle the
plaintiff slipped in did not have any skid marks, it appeared to the plaintiff and her husband that
no one else had stepped in the substance, and the plaintiff and her husband testified that they did
not believe that the defendant had notice of the spill until the accident was reported); Brown v.
Autry Greer & Sons, Inc., 551 So. 2d 1049, 1050 (Ala. 1989) (affirming dismissal of a slip and
fall action where the store manager testified that he was not aware of any foreign substance or
liquid on the floor and the plaintiff failed to offer evidence of notice or delinquency in
discovering and removing the substance); Vargo v. Warehouse Groceries Mgmt., Inc., 529 So.
2d 986, 987 (Ala. 1988) (affirming dismissal where a plaintiff slipped and fell in water that had
collected in front of an ice machine and the plaintiff and a witness testified that there were
several puddles of water in front of the ice machine because “[t]here [was] no evidence in the
record whatsoever that [the defendant’s] employees knew the water was on the floor or that it
had been there such a length of time as to impute constructive notice”). Because Plaintiff has not
offered substantial evidence that Defendant had actual or constructive notice of the spilled

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Epsom salt prior to Plaintiff’s slip, Plaintiff’s negligence and premises liability claims fail as a
matter of law and are due to be dismissed.3 Cash, 418 So. 2d at 876 (affirming a dismissal
because “[t]here [was] no evidence in the record whatsoever that the defendant knew the can was
on the floor or that the can had been on the floor for such an inordinate length of time as to
impute constructive notice”).
V.

Conclusion
For all of these reasons, the court concludes that Defendant’s Motion for Summary

Judgment (Doc. # 26) is due to be granted. An Order consistent with this Memorandum Opinion
will be entered.
DONE and ORDERED this June 15, 2018.

_________________________________
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE

3

Because the court finds that his action is due to be dismissed on substantive grounds, the court need not
(and does not) explore Defendant’s statute of limitations argument.

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