Fuller v. Winn-Dixie Stores, Inc. et al
ORDER granting in part and denying in part 59 Motion for Summary Judgment as follows: granted as to Fuller's claims for premises liability, wantonness, breach of express warranty and AEMLD; granted as to negligence; granted as to negligent s upervision, training and hiring; and denied as to breach of implied warrant. The Motion to Strike/Exclude 66 is granted in part and moot in part. Plaintiff's Motion to Amend Scheduling Order 82 is moot. The Motion to Strike 93 is moot a s to the third-party beneficiary claim and WD's objections are moot as to "Exhibit 3", and overruled as to "Exhibit 6". Fuller's Motion to Strike is denied, all as set out in order. Signed by Chief Judge Kristi K. DuBose on 7/18/2017. (cmj)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
WINN-DIXIE MONTGOMERY, LLC,
CIVIL ACTION 16-00363-KD-M
This matter is before the Court on Defendant’s motion for summary judgment (Doc. 59),
Plaintiff’s Response, Ex. 8 and motion to strike (Docs. 64, 65, 90) and Defendant’s Reply and
Opposition (Docs. 68, 92); Defendant’s motion to exclude Plaintiff’s experts (Docs. 66, 67),
Plaintiff’s Response (Doc. 83) and Defendant’s Reply (Doc. 86); Plaintiff’s motion to amend the
Rule 16(b) Scheduling Order (Doc. 82) and Defendant’s Response (Doc. 85); the May 31, 2017
hearing; Plaintiff’s Supplement and Notice (Docs. 89, 91), Defendant’s Response and motion to
strike (Docs. 93, 94) and Plaintiff’s Opposition (Doc. 95).1
WD’s Motion to Exclude Experts
WD moves to exclude Fuller’s experts, Bowdie Isanhart (Isanhart) and Francis Galle
(Galle), as untimely and prohibited under Daubert. First, Fuller has conceded the exclusion of
Isanhart such that WD’s motion as to Isanhart is MOOT. Second, Fuller’s disclosure of Galle is
untimely, such that WD’s motion as to Galle is GRANTED. As a result, Fuller’s motion to
amend the scheduling order is MOOT.
The Rule 16(b) Scheduling Order established Fuller’s expert testimony disclosure
The majority of Fuller’s filings continue to be filed in single-spaced format. Fuller’s counsel is advised to
review the S.D.Ala. Local Rules, particularly L.R. 5(a)(1) which governs the format of filings, requiring that text be
double-spaced within any page limitations provided.
deadline (including reports) as December 2, 2016. (Doc. 23). Fuller made no expert disclosures
by December 2, 2016. Discovery closed on March 3, 2017. On March 14, 2017, more than three
(3) months after the expert deadline and almost two (2) weeks after the close of discovery,
Fuller’s counsel deposed Galle as a Rule 30(b)(6) representative for (then defendant) Advanced
Polybag, Inc. (Doc. 64-1 at 1). Counsel for Fuller asserts that he “tendered” Galle “during his
deposition as an expert in safe bagging practices, and invited defense counsel to voir dire him,
which was not done…..” (Doc. 64 at 4; Doc. 82-6 at 2). However, at the deposition (and in
response) WD immediately objected stating: “you’re past your deadline for doing so. You’re not
going to take API’s witness and co-opt him as an expert.” WD has been objecting to Galle as an
expert since the deposition and neither deposed Galle at that time as an expert, nor since.
At the May 31, 2017 hearing, counsel for Fuller suggested he did not realize Galle would
be plaintiff’s expert until the March 14th deposition. Only on April 5, 2017, in the midst of
summary judgment briefing, did Fuller “g[i]ve notice” to WD of using Galle as an expert, via
email from counsel. (Doc. 64-8 at 1). Fuller still failed to seek leave of Court to submit Galle as
an expert on that date and/or to properly offer Galle as an expert under the federal rules. Only
approximately six (6) weeks later, on May 25, 2017, did Fuller seek leave of Court to amend the
Scheduling Order to designate her experts (retroactively). (Doc. 82).
Fuller asserts further that Galle will be an expert via video deposition at trial, and proffers
his opinion as to: 1) the impropriety of placing glass jars and metal cans in a shopping bag
together (improper bagging in his personal opinion); 2) the increased risk of damage to shopping
bags if the boxes they are contained/shipped in are opened with a box cutter; and 3) the need to
“build out walls” in a shopping bag with other boxed products to prevent collapse when/if other
items are placed inside. However, Fuller admits that Galle cannot offer an opinion as to: 1) why
the shopping bag broke (causation); 2) WD’s training materials and/or procedures; and 3) any
industry standard which prohibits placing glass jars and metal cans in a shopping bag together.
The analysis of WD’s motion is two-fold: 1) the consequence of Fuller’s violation of Rule 26;
and 2) the merits of Fuller’s motion to amend the Rule 16(b) Scheduling Order, to retroactively
render the untimely expert designation, timely.
Pursuant to Rule 26(a)(2), parties are required to make expert disclosures “at the times
and in the sequence that the court orders” -- via the Rule 16(b) Scheduling Order.2 “Strict
adherence to scheduling orders is important…: ‘[it] is not a frivolous piece of paper, idly entered,
which can be cavalierly disregarded by counsel without peril...Disregard of the order would
undermine the court's ability to control its docket, disrupt the agreed-upon course of the
litigation, and reward the indolent and the cavalier.” Rogers v. Hartford Life and Acc. Ins. Co.,
2012 WL 2395194, *1 at n.3 (S.D. Ala. Jun. 22, 2012). “Were the law otherwise, scheduling
orders would be trivialized to the point of meaninglessness.” Roberson v. BancorpSouth Bank,
Inc., 2013 WL 4870839, *2 (S.D. Ala. Sept. 12, 2013). “The orderly, efficient passage of
lawsuits through the federal courts demands that the Federal Rules…be followed, that the parties
adhere to Scheduling Orders, and that parties act diligently to safeguard their rights and advance
their positions…allowing…dilatory amendment would undermine each of these objectives,
supplanting predictable procedural rules and rigorous scheduling deadlines with an ad hoc,
chaotic, ‘anything-goes’ approach. This the Court is unwilling to do.” Id. at 2. “The purpose of
civil discovery is to create an orderly process by which a record may be generated to support trial
Local Rule 26.1(a)(2) provides that “the parties shall disclose the information described in Fed.R.Civ.P.
26(a)(2–3) at the times and in a sequence established” by the Rule 16(b) Order “entered in each particular action.”
or dispositive motions. Surprise is not favored.” Lavender v. Florida Gas Trans. Co., 2003 WL
25682205, *2 (S.D. Ala. Jun. 30, 2003).
Additionally, per Rule 37(c)(1), “[i]f a party fails to provide information or identify a
witness as required by Rule 26(a) or (e), the party is not allowed to use that information or
witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was
substantially justified or is harmless.” The determination of whether a party's failure to timely
disclose an expert is “substantially justified” or “harmless”3 lies in the broad discretion of the
Court, after consideration of: 1) the unfair prejudice or surprise of the opposing party; 2) the
party's ability to cure the surprise; 3) the likelihood and extent of disruption to the trial; 4) the
importance of the evidence; and 5) the offering party's explanation for its failure to timely
disclose. Bradenton Beauty & Barber Academy, Inc. v. First Natl. Ins. Co. of Am., 2017 WL
915242, *1 (M.D. Fla. Mar. 8, 2017). The burden of establishing that a failure to disclose an
expert is either substantially justified or harmless rests on the party who fails to make the
required disclosure. Mitchell v. Ford Motor Co., 318 Fed. Appx. 821, 824 (11th Cir. 2009).
“[T]he sanction of exclusion is automatic and mandatory” unless such is established. Cardona
v. Mason and Dixon Lines, Inc., 2017 WL 2363647, *2 (S.D. Fla. May 31, 2017).
Here, the unfair prejudice or surprise to WD is significant. WD did not depose Galle as an
“Substantial justification requires justification to a degree that could satisfy a reasonable person that
parties could differ as to whether the party was required to comply with the disclosure request. The proponent's
position must have a reasonable basis in law and fact. The test is satisfied if there is [a] genuine dispute concerning
compliance[;]” and 2) “[f]ailure ...[to make the required disclosure]… is harmless when there is no prejudice to the
party entitled to the disclosure.” Ellison v. Windt, 2001 WL 118617, *2 (M.D. Fla. Jan. 24, 2001). See also Street v.
Drury Inns, Inc., 2009 WL 3784330, *2 (S.D. Ala. Nov. 10, 2009). The Advisory Committee Notes to the 1993
amendment to Rule 37(c) provides examples of “harmless” violations: “e.g., the inadvertent omission from a Rule
26(a)(1)(A) disclosure of the name of a potential witness known to all parties; the failure to list as a trial witness a
person so listed by another party ...” “This commentary strongly suggests that ‘harmless' involves an honest mistake
on the part of a party coupled with sufficient knowledge on the part of the other party.” Burney v. Rheem Mfg. Co.,
Inc., 196 F.R.D. 659, 692 (M.D. Ala. 2000) (citations omitted).
expert, only as a Rule 30(b)6) witness. WD has had no opportunity to prepare and then crossexamine Galle as an expert. WD has had no opportunity to secure a rebuttal expert. Indeed, at
this juncture – with summary judgment pending and after discovery has closed – WD has little
ability to cure Fuller’s expert surprise. Additionally, allowing Galle as an expert would wholly
disrupt the timeline in this case as well as the trial setting (likely prompting an entirely new
briefing schedule, new motions for summary judgment, etc), as time would likely need to be
allotted for WD to re-depose Galle in that capacity and perhaps conduct further discovery.
Moreover, the importance or significance of Galle’s opinion and testimony is questionable
as he testified that he could offer no opinion as to the cause of the bag failure. Indeed, Galle
does not known why the bag failed (Doc. 66-1 at 18) and he has no opinion on whether the
groceries were properly bagged (i.e., whether Heath, WD’s employee, improperly bagged the
groceries) (Doc. 66-1 at 20).
Further, Fuller’s explanation does not provide reasonable justification for missing the
deadline and for failing to timely disclose. Fuller’s claim that counsel just “made a mistake” is
insufficient. And to the extent counsel suggests – instead -- that he “had no way to know” of
Galle as an expert until the March 2017 deposition, the Court cannot agree. Fuller had the entire
duration of discovery to ascertain any experts in support of her case and properly disclose them.
In sum, Fuller has not established that her counsel’s failure to timely disclose Galle as an
expert is substantially justified or harmless. Rule 37(c)(1)’s self-executing sanction dictates that
Galle cannot be used as an expert.
Rule 16(b) Scheduling Order
After summary judgment and after WD moved to exclude Galle, Fuller filed a motion to
amend the Rule 16(b) Scheduling Order. Per Rule 16(b)(4), “[a] schedule may be modified only
for good cause and with the judge’s consent.” (emphasis added). Rule 16(d) provides the
scheduling order “controls the course of the action unless the court modifies it,” and Rule 16(f)
prescribes sanctions for noncompliance. Case law makes clear that the “good cause” standard
“precludes modification unless the schedule cannot be met despite the diligence of the party
seeking the extension.” Sosa v. Airprint Sys., Inc., 133 F.3d 1417, 1418 (11th Cir. 1998).4
The Rule 16(b) Scheduling Order clearly established the deadlines that govern this case.
Fuller did not seek leave of Court to amend those deadlines. Fuller did not seek leave of Court to
do so when she submitted her expert’s opinions in response to summary judgment. Only on May
25, 2017, did Fuller first seek leave of Court to amend the Scheduling Order -- to retroactively
render the expert designation timely AFTER filing a response to the pending motion for summary
judgment. However, Plaintiff has not attempted to make a showing of diligence that might satisfy
the Rule 16(b)(4) requirement for modifying the scheduling order. There is no indication that
despite diligence she was unable to locate an expert in a timely manner. Hughes v. Stryker Sales
Corp., 2010 WL 1961051, *6 (S.D. Ala. May 13, 2010). Fuller has failed to demonstrate good
cause for missing the Court’s deadlines.
As such, WD’s motion to exclude is GRANTED in part and MOOT in part as follows:
that portion of the motion concerning Isanhart is MOOT due to Fuller’s concession; that portion
of the motion based on the untimely disclosure of Galle is GRANTED; and that portion of the
motion based on substantive Daubert grounds is MOOT. As a result, the motion to amend the
To establish good cause for an extension, the party seeking such must have been diligent; if not “the
inquiry should end.” Will–Burn Recording & Pub. Co. v. Universal Music Group Records, 2009 WL 1118944, *2
(S.D. Ala. Apr. 27, 2009). See also, Rogers v. Hartford Life and Acc. Ins. Co., 2012 WL 2395194, *2 (S.D. Ala.
Jun. 22, 2012). “[D]iligence, not lack of prejudice, is the key[,]” and an allegation that defendant will not be
prejudiced if amendment is permitted now cannot help plaintiff in the absence of a threshold showing of diligence.”
Id. at *3.
scheduling order is MOOT, and those portions of Fuller’s opposition to WD’s motion for
summary judgment which rely on the expertise of Isanhart and/or Galle will not be considered.
Motion for Summary Judgment
Findings of Fact5
This case stems from Plaintiff Kathryn F. Fuller’s (Fuller) June 11, 2014 shopping trip to
a Winn Dixie grocery store in Mobile, Alabama, where she purchased two cans of soup, a jar of
spaghetti sauce and other items. (Doc. 59-3 at (Dep. Fuller at 25)). Fuller purchased her
groceries, which were then bagged by WD employee Julia Heath (Heath). Fuller exited the store
and as she was leaving, one of the bags she was carrying (containing the soup cans and spaghetti
jar) allegedly failed. This resulted in the glass spaghetti jar shattering, severely slicing her left
foot. According to Fuller, “I hear[d] the glass shatter on the concrete, and…I was bleeding…”
(Doc. 59-3 (Dep. Fuller at 26)). As alleged, Fuller was injured, underwent surgery, experiences
continued problems and suffers from permanent limitations.
On June 7, 2016, Fuller initiated this action against Defendants Winn-Dixie Stores, Inc.
and Advanced Polybag, Inc. in the Circuit Court of Mobile County, Alabama (CV 16-901162),
and on July 1, 2016 amended the complaint to add Defendant Winn-Dixie Montgomery, LLC.
(Doc. 1-1). Fuller’s initial claims against Defendants consisted of negligence and wantonness,
premises liability and negligent, reckless and wanton hiring/supervision/training. (Doc. 1-1). On
July 11, 2016, the Winn-Dixie Stores defendants removed6 the case to this Court on the basis of
On summary judgment, the Court must “resolve all issues of material fact in favor of the [non-movant],
and then determine the legal question of whether the [movant] is entitled to judgment as a matter of law under that
version of the facts.” McDowell v. Brown, 392 F.3d 1283, 1288 (11th Cir. 2004).
Defendant Advanced Polybag, Inc. consented to removal. (Doc. 1-3).
federal subject matter diversity jurisdiction. On July 19, 2016, this Court conducted a sua sponte
preliminary screening of the Notice of Removal, assessing federal diversity jurisdiction. (Doc.
5). On August 12, 2016, this Court ruled that “it is more likely than not that the amount in
controversy in this case exceeded the $75,000 minimum at the time the Notice of Removal was
filed.” (Doc. 12 at 3). Winn-Dixie Stores, Inc. was later dismissed as a defendant, leaving only
Winn-Dixie Montgomery, LLC (WD) as the defendant. (Doc. 15). Fuller’s filed an amended
complaint (with written consent of defendants) to add breach of warranty and AEMLD claims
was granted. (Doc. 21). WD has now moved for summary judgment. (Doc. 59).
Standard of Review
“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) (Dec. 2010). The recently amended Rule 56(c) provides as follows:
(1) Supporting Factual Positions. 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, 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; 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.
(2) Objection That a Fact Is Not Supported by Admissible Evidence. A party
may object that the material cited to support or dispute a fact cannot be presented
in a form that would be admissible in evidence.
(3) Materials Not Cited. The court need consider only the cited materials, but it
may consider other materials in the record.
(4) Affidavits or Declarations. An affidavit or declaration used to support or
oppose a motion must be made on personal knowledge, set out facts that would be
admissible in evidence, and show that the affiant or declarant is competent to
testify on the matters stated.
FED.R.CIV.P. Rule 56(c).
Defendant, as the party seeking summary judgment, bears the “initial responsibility of
informing the district court of the basis for its motion, and identifying those portions of ‘the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.”
Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991) (quoting Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986)). If the nonmoving party fails to make “a sufficient showing
on an essential element of her case with respect to which she has the burden of proof,” the
moving party is entitled to summary judgment. Celotex, 477 U.S. at 323. “In reviewing whether
the nonmoving party has met its burden, the court must stop short of weighing the evidence and
making credibility determinations of the truth of the matter. Instead, the evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.” Tipton v.
Bergrohr GMBH-Siegen, 965 F.2d 994, 998-999 (11th Cir. 1992).
Motions to Strike
WD’s Motion to strike (Doc. 93)
WD filed a motion to strike Section III of Fuller’s Brief (third-party beneficiary claim)
and Exhibits 3 and 6 (Docs. 89 (Pages 17-20), 89-3, 89-6), related to the breach of implied
warranty claim. For the third-party beneficiary claim (Doc. 89 at 1, 17-20), Fuller cannot raise
new claims on summary judgment7 and is limited to the allegations of the operative complaint,
Which applies to any other “new” claims or arguments Fuller attempts to assert. Fuller’s suggestion that
this Court invited her to do so, via Supplemental briefing (which was clearly narrowly focused), is not well received.
which did not include this claim. (Doc. 22). See, e.g., GeorgiaCarry.Org, Inc. v. Georgia, 687
F.3d 1244, 1258 and note 27 (11th Cir. 2012) (“[i]t is well-settled in this circuit that a plaintiff
may not amend the complaint through argument at the summary judgment phase”); Gilmour v.
Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir. 2004) (“[a] plaintiff may not amend
h[is] complaint through argument in a brief opposing summary judgment”; King v. ST
Aerospace Mobile, Inc., 2013 WL 2635926, *8 (S.D. Ala. Jun. 11, 2013) (plaintiff cannot amend
to add new causes of action via summary judgment). As noted in Joseph M. Still Burn Ctrs.,
Inc., Liberty Mut. Ins. Co., 2010 WL 55471, *13 (S.D. Ga. Jan. 6, 2010):
….[Plaintiff’s]…third party beneficiary claim is a “new claim” within the meaning of
Gilmour, such that an amendment is required in order for the claim to be addressed on
summary judgment. Nowhere in the Complaint does Plaintiff state the words “third
party” or “third party beneficiary,” or in any way indicate that it is suing…[based on such
a claim]. The complete lack of notice of a third party beneficiary claim is further
evidenced by the fact that Defendant did not address such a claim in its initial motion for
summary judgment.…“[l]iberal pleading does not require that, at the summary judgment
stage, defendants must infer all possible claims that could arise out of facts set forth in
the complaint.” Gilmour, 382 F.3d at 1315.
Not only does the Complaint provide no real notice of a third party beneficiary claim, but
there is also no conceivable way to read Plaintiff's “breach of contract” claim as
simultaneously asserting both a claim for breach of implied contract and a third party
beneficiary claim…..Moreover, a plaintiff cannot assert a claim for “breach of contract,”
and then wait until summary judgment to inform the defendant as to whether it is
asserting a claim for breach of implied contract, a third party beneficiary claim….
without ever having amended its complaint; to permit this method of asserting claims,
would be to ignore the spirit and clear language of Gilmour: “Efficiency and judicial
economy require that the liberal pleading standards ... are inapplicable after discovery has
commenced. At the summary judgment stage, the proper procedure for plaintiffs to assert
a new claim is to amend the complaint ....” Id. at 1315.
…Plaintiff has improperly asserted a new third party beneficiary claim in its Response to
Defendant's Motion for Summary Judgment. The proper procedure for Plaintiff to assert a
new claim is to timely seek to amend the complaint. In light of Plaintiff's failure to do so,
Plaintiff's third party beneficiary claim cannot be considered on summary judgment.
As such, any claims and allegations raised by Fuller for the first time via summary judgment
briefing are not properly before the Court and will not be substantively addressed or considered.
Thus, WD’s motion to strike the third-party beneficiary claim is MOOT.8
As for Exhibits 3 and 6, since 2010 and per Rule 56 of the Federal Rules of Civil
Procedure, motions to strike “material” on summary judgment are inappropriate. Rather, Rule
56(c)(2) provides that “[a] party may object that the material cited to support or dispute a fact
cannot be presented in a form that would be admissible in evidence” meaning that:
Subdivision (c)(2) provides that a party may object that material cited to support or
dispute a fact cannot be presented in a form that would be admissible in evidence. The
objection functions much as an objection at trial, adjusted for the pretrial setting. The
burden is on the proponent to show that the material is admissible as presented or to
explain the admissible form that is anticipated. There is no need to make a separate
motion to strike. If the case goes to trial, failure to challenge admissibility at the
summary-judgment stage does not forfeit the right to challenge admissibility at trial.
Fed.R.Civ.P. 56, Adv. Comm. Notes, “Subdivision(c)” (2010 Amendments) (emphasis added).
As such, the Court construes WD’s motion to strike the exhibits as Objections.
WD objects to “Exhibit 3” (Doc. 89-3) -- portions of Galle’s deposition (Fuller’s expert)
-- as untimely. WD’s Objection is MOOT given the Court’s ruling on WD’s motion to exclude
experts supra and “Exhibit 3” will not be considered on summary judgment.
WD also objects to “Exhibit 6” (Doc. 89-6) – the entirety of Fuller’s Doc. 89-6 (Dep.
Fuller at Pages 1, 24-27, 63) – as untimely, as submitted outside the April 14, 2017 deadline for
summary judgment briefing per Doc. 60. The summary judgment briefing order provided Fuller
until April 14, 2017 to oppose WD’s motion. (Doc. 60). The Court order specified, in relevant
part, that “[a]ny party opposing the motion must respond in the manner set out in Rule 56 of the
Federal Rules of Civil Procedure and Civil L.R.…56” by said date, and “a plaintiff against
The Federal Rules of Civil Procedure delineate the general use of a motion to strike: “Upon motion made
by a party ... the court may order stricken from any pleading any insufficient defense or any redundant, immaterial,
impertinent, or scandalous matter.” Fed.R.Civ.P. 12(f). WD’s motion is not a request to strike an insufficient defense
or any redundant, immaterial, impertinent, or scandalous matter.
whom a motion for summary judgment is filed must oppose that motion by response as provided
in the rules.” (Id.) Local Rule 56(b) provides that “[u]nless the Court orders otherwise, the
nonmovant must file any response in opposition to the motion within twenty-eight (28) days of
service of the motion. The non-movant’s brief must include: (1) all facts relied upon, each
supported by a specific, pinpoint citation to the record; (2) all challenges to the movant’s asserted
facts; and (3) argument supported by legal authority as appropriate. The non-movant must also
file all evidence relied upon. No other supporting documents may be filed absent Court order.”
Local Rule 56(e) provides “[t]he Court will deem uncontroverted material facts to be admitted
solely for the purpose of deciding the motion for summary judgment.”
On April 14, 2017 Fuller filed her response to summary judgment with exhibits (evidence
upon which she relies). (Docs. 64, 65). Fuller failed to submit any of her deposition testimony
in opposition to WD’s motion. However, the court sees no prejudice to WD in the late filing.
This is especially true since WD submitted Pages 1 (in full) and Pages 25 and 26 (in redacted
form) of Fuller’s deposition in support of its motion (Doc. 59-3). As such, WD’s Objection is
Fuller’s motion to strike (Doc. 90)
Fuller moves to strike portions of WD’s motion for summary judgment, specifically
“Statements” #12, 24, 26 and 36 (presumably meaning WD’s Facts). WD opposes the motion as
untimely and an improper attempt to reopen summary judgment briefing.
On April 14, 2017 Fuller filed her response to summary judgment with exhibits. (Docs.
64, 65). On May 15, 2017, this Court noted that the summary judgment briefing was “already
complete” such that a ruling on same would not be suspended or held in abeyance, scheduling a
May 31, 2017 hearing to address, among other pending motions, the summary judgment. (Doc.
76). Following the hearing, the Court ordered limited briefing by Fuller on the singular issue of
her breach of implied warranty claim. (Doc. 87). Fuller submitted additional briefing, and filed
a motion to strike “Statements” #12, 24, 26 and 36 in WD’s summary judgment motion.
The Federal Rules of Civil Procedure delineate the general use of a motion to strike:
“Upon motion made by a party ... the court may order stricken from any pleading any
insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.”
Fed.R.Civ.P. 12(f). Fuller’s motion is not a request to strike an insufficient defense or any
redundant, immaterial, impertinent, or scandalous matter. Therefore the motion to strike is
Fuller concedes that her claims for wantonness (including reckless/wanton hiring,
training and supervision), premises liability, breach of express warranty and AEMLD are due to
be dismissed. (Doc. 64 at 10, 14, 17). As such, WD’s motion is GRANTED as to those claims.
The Court now turns to the remaining three (3) claims and reminds the parties “[t]he onus is on
the party opposing summary judgment to submit affirmative evidence demonstrating that there
exists a genuine issue of material fact regarding an essential element of the claim….The court is
not required to distill every potential argument that could be made…” Katrensky v. U.S., 732 F.
Supp.2d 1194, 1203 (M.D. Ala. 2010) (internal citations omitted).
Because this action is pending in federal court on the basis of diversity, the substantive law of Alabama
applies. Employers Mut. Cas. Co. v. Mallard, 309 F.3d 1305, 1307 (11th Cir. 2002).
Additionally, WD has submitted deposition pages in such a highly redacted form that the context and
substance of the testimony is unknowable. For instance, only the deponent’s answers are shown, not the questions
posed; or only a question with an answer with the question being unclear as to the subject matter (e.g., Doc. 59-6 at
3 (Dep. McLaughlin at 158, 187, 230, 235, 243, 265, 266)). Such evidentiary submissions do not allow for
substantive Court review and as a result, have not been considered on summary judgment.
Fuller’s Complaint alleges negligence based on, Heath’s (WD’s bagger/cashier) actions.
Specifically Fuller alleges that WD “negligently loaded the subject failed bag….[and] knew, or
should have known, that injury was likely to occur as a result of the improper loading of the
subject failed bag…..As a result…Plaintiff was injured….” (Doc. 22 at 3 at ¶13-16).11
On summary judgment Fuller asserts that there is a genuine issue of material fact as to
whether that the combination of items the cashier/bagger placed in her grocery bag created an
“unsafe bag” to transport her groceries.
In support, Fuller asserts: 1) she is similar to the
plaintiff in Housing Auth. of Bham Dist v. Morris, 244 Ala. 557 (Ala. 1943), as she had a right
to rely on WD to provide “safe bags” to transport groceries (because a tenant has a right to rely
on a landlord to furnish reasonably safe appliances); and 2) based on implied warranty case law
“[l]iability still rests on” WD “for injuries caused….for the failure of their grocery bags to
perform as intended” per Skelton v. Druid City Hosp. Bd. 459 So.2d 818 (Ala. 1984). (Doc. 64
Fuller’s conflation of landlord-tenant and implied warranty case law with that of general
negligence does not support her case. For her negligence claim to survive summary judgment,
Fuller must prove: 1) WD owed her a duty; 2) WD breached that duty; 3) she suffered a
loss/injury; and 4) WD’s negligence was the actual and proximate cause of her injury. Palmer v.
Fuller alleges that she was injured by WD’s conduct. Thus, her negligence claim does not sound in
premises liability: “courts decide whether the appropriate framework for analyzing duty is traditional negligence or
premises liability by reference to whether the injury was caused by the landowner's affirmative conduct or by a
condition of the premises.” Eva Costa v. Sam’s East, Inc., 2012 WL 3288680, *3 (S.D. Ala. Aug. 9, 2012).
Fuller attempted to amend her claim at the hearing to allege – also -- that the actions of WD employees in
general, via improperly opening boxes containing the plastic bags with box cutters (with reference to the Deposition
of McLaughlin) caused the bag to fail, and caused her injury. Fuller is limited to the allegations of her complaint and
cannot amend her complaint in response to summary judgment. See infra Section II.C.1. As such, Fuller’s box
cutter allegation is not properly before the Court and will not be considered on summary judgment.
Infosys Techs. Ltd, Inc., 888 F.Supp.2d 1248, 1255 (M.D. Ala. 2012); QORE, Inc. v. Bradford
Bldg. Co., Inc., 25 So.3d 1116, 1123 (Ala. 2009); Martin v. Arnold, 643 So.2d 564, 567 (Ala.
1994); Lollar v. Poe, 622 So.2d 902, 905 (Ala. 1993); John R. Cowley & Bros., Inc. v. Brown,
569 So.2d 375, 379 (Ala. 1990). Proximate cause is “an act or omission that in a natural and
continuous sequence, unbroken by any new and independent causes, produces the injury and
without which the injury would not have occurred.” Crowne Invs., Inc. v. Bryant, 638 So.2d 873,
877-878 (Ala. 1994). It is “conduct [that] naturally and probably brought about the harm
and…[that] would not have happened without the conduct.” APJI 33.00 Causation-Definition.
It is undisputed that Fuller was injured and the court will assume that WD owed a duty to
properly bag the groceries. However, Fuller has failed to show the existence of genuine issues of
material fact that WD’s presumed negligent bagging was the actual and proximate cause of her
At the May 31st hearing Fuller conceded that she does not know what happened –
whether the injury was caused by Heath’s improper bagging, a defect in the bag, Fuller’s jiggling
of the items while carrying the bag causing the items to break against one another, or some other
reason. The evidence reveals that Fuller testified that she has no idea why the grocery bag broke.
(Doc. 59-3 (Dep. Fuller at 30)). Fuller does not have any knowledge as to whether the bag was
overfilled or improperly filled, as “I don’t think I paid attention to her actually putting items in
the bag” and she is “not sure” she knows of anything Heath did incorrectly to cause her injury.
(Id. (Dep. Fuller at 31, 33-34, 41-42)). Fuller does not know if there was anything wrong with
the bag and/or anything WD could have done to keep the incident from happening. (Id. (Dep.
Fuller at 34, 42)). Finally, Heath testified that she did not see any problems from loading the bag
with less than five (5) pounds of groceries, which is what she did in this instance. (Doc. 59-7
(Dep. Heath at 64-65)). And other than the video, which fails to support Fuller’s contention that
improper bagging caused the bag to break resulting in injury to her, Fuller has submitted no
evidence to support causation.
To recover for negligence Fuller must show that WD’s breach was the proximate and
actual cause of her injury. Fuller has presented possibilities to the Court for her injury. Fuller’s
speculation – and theories in the alternative -- as to the cause of her injury is insufficient to
survive summary judgment. See, e.g., Giles, 574 Fed. Appx. at 984 (finding similarly); Cordoba
v. Dillard's, Inc., 419 F.3d 1169, 1181 (11th Cir. 2005) (“unsupported speculation...does not meet
a party's burden of producing some defense to a summary judgment motion. 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”); Brantley v. International Paper Co., 2017 WL 2292767,
*25 (M.D. Ala. May 24, 2017)12 (“plaintiffs cannot proceed to trial based on a mere
hunch….There is simply no evidence -- beyond speculation…plaintiffs have not identified an
evidentiary basis connecting the mill's emissions to the….damage….it is just as likely as not that
something other….caused the….damages…. See So. Ry. Co. v. Dickson, 100 So. 665, 669 (Ala.
1924) (‘Proof which goes no further than to show an injury could have occurred in an alleged
way, does not warrant the conclusion that it did so occur, where from the same proof the injury
can with equal probability be attributed to some other cause’)”); Ex Parte Mobile Power &
Light Co., 810 So.2d 756, 759-760 (Ala. 2001) (emphasis in original) (“[a]s a theory of
causation, a conjecture is simply an explanation consistent with known facts or conditions but
not deducible from them as a reasonable inference. There may be two or more plausible
explanations as to how an event happened or what produced it; yet, if the evidence is without
Cf. Kearns v. Sealy, 496 F.Supp.2d 1306, 1317 at note 16 (S.D. Ala. Jul. 16, 2007).
selective application to any one of them, they remain conjectures only”); Ex parte Harold L.
Martin Distrib. Co., Inc., 769 So.2d 313, 315-316 (Ala. 2000) (“[t]he fatal defect…is that she
failed to present evidence indicating that the…ways in which she says [defendants]…were, in
any way, involved in a chain of causation resulting in her fall….In fact, she could not identify the
cause”).13 Fuller has failed to show that Heath’s negligence (via improper bagging) was the
proximate and actual cause of her injury. Thus, WD’s motion is GRANTED as to negligence.
Negligent supervision and training
In the Complaint Fuller alleges that WD negligently hired, supervised and trained Heath
because WD has a duty to hire, supervise and/or train their employees to: “make sure that there
are not hazards in the…grocery transportation materials…so as not to cause any unreasonable
dangers for customers and/or persons who would eventually utilize” them; “properly
inspect…grocery transportation materials…so that there are no dangerous conditions…not
readily discoverable to their patrons…[;] and “to inspect and keep…grocery transportation
materials….free and clear of dangerous conditions…”14
(Doc. 22 at 4-5).
judgment and at the May 31, 2017 hearing, Fuller narrowed her claim to one for WD’s failure to
train Heath, based on her alleged failure to complete “hands-on” training in the store and her
Harold L. Martin, 769 So.2d at 315-316: “Alabama juries are not permitted to speculate as to the cause of
an accident. See Brookwood Medical Ctr. v. Lindstrom, 763 So.2d 951 (Ala. 2000); Turner v. Azalea Box Co., 508
So.2d 253, 254 (Ala.1987) (“[w]hen evidence points equally to inferences that are favorable and to inferences that
are unfavorable to the moving party, the evidence lacks probative value; and the evidence may not be used to
support one inference over another because such use is mere conjecture and speculation”). Because she could not
say how….the…ramp….contributed to her accident, Williams failed to present evidence sufficient to
overcome…summary judgment…In Tice, as in this case, the plaintiff “could not state the cause of her fall….
Because she could only speculate as to the cause of the accident….”
Because Fuller has not asserted any arguments regarding “contaminants” – even though such is alleged in
this section of the Complaint – the Court considers that argument/claim abandoned by Fuller.
allegedly forged signature on a WD training form.
As set forth in Knox v. U.S., 978 F.Supp.2d 1203, 1214 (M.D. Ala. 2013) (internal
….[i]n the master and servant relationship, the master is held responsible for his servant's
incompetency when notice or knowledge, either actual or presumed, of such unfitness has
been brought to him. Liability depends upon its being established by affirmative proof
that such incompetency was actually known by the master or that, had he exercised due
and proper diligence, he would have learned that which would charge him in the law with
such knowledge. It is incumbent on the party charging negligence to show it by proper
evidence. This may be done by showing specific acts of incompetency and bringing them
home to the knowledge of the master, or by showing them to be of such nature, character,
and frequency that the master, in the exercise of due care, must have had them brought to
See also Southland Bank v. A&A Drywall Supply Co., Inc., 21 So.3d 1196, 1214-1215 (Ala.
2008) (same). “A mistake or single act of negligence on the part of an employee does not
establish incompetency: ‘[n]egligence is not synonymous with incompetency. The most
competent may be negligent…But one who is habitually negligent may on that account be
incompetent.’” (Id. at 1216 (internal citations omitted, emphasis in original)). Fuller must
prove: 1) Heath committed a tort under Alabama law; 2) WD had actual notice of this conduct or
would have if it had exercised due and proper diligence; and 3) WD failed to respond to this
notice adequately. Bennett v. Nationstar Mortg., LLC, 2015 WL 5294321, *7 (S.D. Ala. Sept. 8,
2015). Thrasher v. Ivan Leonard Chevrolet, Inc., 195 F.Supp.2d 1314, 1320 (N.D. Ala. 2002);
Humana Med. Corp. of Ala. v. Traffanstedt, 597 So.2d 667, 669 (Ala. 1992).
In an endeavor to meet her burden to establish negligent supervision and training, Fuller
points to evidence that Heath failed to complete required WD bagging training, WD falsely
documented that such training was complete and Heath failed to follow WD’s bagging rules.
However, even assuming Heath failed to complete bagging training and WD forged her
signature, Fuller has not established, as explained supra, that Heath committed an Alabama tort.
“[A]n employer may not be held directly liable on a theory of negligent…training because no
tort occurred. Jones Express, Inc. v. Jackson, 86 So.3d 298, 303–04 (Ala.2010) (per curiam).”
Kurtts v. Chiropractic Strategies Group, Inc., 481 Fed. Appx. 462, 469 (11th Cir. 2012). Further,
Fuller has failed to establish that WD had knowledge of incompetence and/or wrongful conduct
by Heath – much less “affirmative proof” of same. See generally, Katrensky v. U.S., 732
F.Supp.2d 1194, 1204 (M.D. Ala. 2010) (granting summary judgment due to plaintiffs’ failure to
provide any facts or evidence in support of a negligent training claim); Hester v. Brown, 512
F.Supp.2d 1228 (S.D. Ala. 2007) (granting summary judgment due to plaintiff’s lack of evidence
as to knowledge of employee’s incompetence); Jones Express, Inc. v. Jackson, 86 So.3d 298
(Ala. 2010) (reversing a plaintiff’s jury verdict because the jury determined the employee had
not committed any negligent act). WD’s motion is GRANTED as to the claim of negligent
supervision and training.
Breach of Implied Warranty15
In the Complaint, Fuller’s breach of implied warranty claim is rooted in the assertion that
WD sold her the grocery bag (i.e., that WD is a “seller” and “merchant” of grocery bags):
27. Plaintiff was sold the subject grocery bag by the Defendant and Plaintiff was a
purchaser of the grocery bag under the Alabama Uniform Commercial Code.
28. Defendant Winn-Dixie….impliedly warranted that the subject grocery bag,
which broke and caused a glass jar to fall from the same, shatter and severely
lacerate Plaintiff’s foot, was merchantable and fit for the ordinary purposes for
which such goods are used, when Defendant sold the subject grocery bag. Said
Defendant were merchants with respect to grocery bag.
29. Said Defendant breached the… implied warranty in that the subject grocery
bag broke while holding groceries causing a glass jar to fall from the same,
shatter and severely lacerate Plaintiff’s foot. Therefore, the subject grocery bag
Any submissions as to Fuller’s untimely experts Galle and Isanhart have been excluded from
consideration. Likewise, as noted supra, Fuller’s third-party beneficiary claim is not properly before the Court.
was not merchantable as warranted.
30. As a proximate result of said breach… Plaintiff suffered injuries….
(Doc. 22 at 5).
On summary judgment, WD contends that Fuller’s claim fails because there was no sale
of goods (WD did not sell her the bag), there was no contract between Fuller and WD for the
bag, and WD provides bags “gratuitously to patrons to assist them in the transportation of their
(Doc. 59 at 3, 15 and Doc. 68 at 10 (citing Doc. 59-5 (Aff. McLaughlin)).
Specifically, “Winn-Dixie provides customers with plastic grocery bags for the transportation of
their groceries” and “does not charge its customers for grocery bags.” (Id.)
In opposition to summary judgment and in her supplemental briefing,16 Fuller relies on
the Alabama Code sections for merchantability17 and fitness for a particular purpose18, alleging
With the Supplement Fuller also submits new evidence including a “Raw Materials Supply Agreement”
(as amended) between WD and the bag supplier/manufacturer. (Doc. 89-1; Doc. 89-2). (Doc. 89-1 at 14 at ¶14.7;
Doc. 89-2 at 2 at Section III). The language Fuller cites in the Agreement, which is governed by Florida law, deals
with Advanced Polybag’s warranties concerning merchantability and fitness for use – not any warranties on WD’s
part. Further, as noted supra, Fuller had the opportunity to submit any and all evidence in support of her claim on
April 14th and did not submit this Agreement. The Court’s order concerning the Supplement was limited to Fuller
briefing: “1) how Winn Dixie is a seller relative to the breach of implied warranty claim; and 2) upon what code
sections (statutes) Plaintiff relies for its breach of implied warranty claim.” (Doc. 87 at 1). Fuller was not given
leave to submit new evidence. As such, the Agreement is not properly before the Court.
Section 7-2-314(2)(c) provides: “[g]oods to be merchantable must be at least such as…(c) are fit for the
ordinary purpose for which such goods are used…” As set forth in Ex parte General Motors Corp., 769 So.2d 903,
911-912 (Ala. 1999): “The implied warranty of merchantability is found in § 7-2-314(1)…which provides: “Unless
excluded or modified (Section 7-2-316), a warranty that the goods shall be merchantable is implied in a contract for
their sale if the seller is a merchant with respect to goods of that kind.” Subsection (2)(c) of that Code section
provides that to be considered merchantable, goods must be “fit for the ordinary purposes for which such goods are
used.”…“[t]o establish his claim of breach of the implied warranty of merchantability…[a plaintiff]…must ‘“prove
the existence of the implied warranty, a breach of that warranty, and damages proximately resulting from that
Section 7-2-315 provides further: “[w]here the seller at the time of contracting has reason to know any
particular purpose for which the goods are required and that the buyer is relying on the seller's skill or judgment to
select or furnish suitable goods, there is unless excluded or modified under Section 7-2-316 an implied warranty that
the goods shall be fit for such purpose.
WD breached both. (Doc. 64 at 17). Fuller contends that WD is a “seller” and “merchant” as
defined in §§ 7-2-103(1)(d)(“‘Seller’ means a person who sells or contracts to sell goods.”) and
7-2-104(1)(“‘Merchant’ means a person who deals in goods of the kind or otherwise … holds
himself out as having knowledge or skill peculiar to the practices or goods involved in the
transaction….”). Fuller relies on Alabama Powersport Auction, LLC v. Wiese, 143 So.3d 713
(Ala. 2013) (citing Powers v. Coffeyville v. Livestock Sales Co., 665 F.2d 311 (10th Cir. 1981))
and Bradford v. Northwest Ala. Livestock Assn., 379 So.2d 609, 611 (Ala. Civ. App. 1980) to
assert that Alabama case law interprets the terms “seller” and “merchant” broadly. (Doc. 89 at 68).
Fuller also asserts that WD entered into a contract with her for the sale of the bag as
defined in § 7-2-106(1)(“A ‘Sale’ consists in the passing of title from the seller to the buyer for a
price.”). Fuller contends “Winn-Dixie admits it supplied” her with a bag “as part of WinnDixie’s sale of groceries….Therefore, Winn-Dixie is a ‘seller’ of the grocery bags under
Alabama law.” (Doc. 64 at 16).
Fuller also argues WD is a “seller” and “merchant” of the bags as per Skelton v. Druid
City Hosp. Board, 459 So.2d 818 (Ala. 1984). In Skelton, the court concluded that the hospital
board was a seller and a merchant under the Alabama Code with regard to a suturing needle that
broke off into plaintiff during a procedure and remained lodged inside. 359 So.2d 818. The
Court held, in light of the Official Comment to Section 7-2-313, that the warranty sections of
Article 2 “need not be confined to sales contracts” and that 7-2-315 should be broadly interpreted
to include transactions in which there is no actual transfer of title (e.g., rental and lease
transactions). Id. at 821.
From this holding, Fuller argues that if the hospital in Skelton is
merchant with regard to the needle “then Winn-Dixie under Skelton” is as well “with regard to
the furnishing of grocery bags” to her. (Doc. 64 at 16). Fuller also cites Caldwell v. Brown
Serv. Funeral Home, 345 So.2d 1341 (Ala. 1977) (the court concluded that an implied warranty
arose because a funeral home provided both a service (the funeral services) and a product (a
casket), and billed plaintiff for both products and services), suggesting an implied warranty
exists because Fuller’s grocery trip was a “mixed” or “hybrid” transaction (combination of
As summarized in Taylor v. StrongBuilt, Inc., 2011 WL 4435601, *5-6 (S.D. Ala. Sept.
23, 2011) (footnote omitted):
“The warranty of fitness for a particular purpose ‘is implied if: (1) the seller has reason to
know the buyer's particular purpose; (2) the seller has reason to know that the buyer is
relying on the seller's skill or judgment to furnish the appropriate goods; and (3) the
buyer, in fact, relied upon the seller's skill or judgment.’” Tucker v. General Motors
Corp., 769 So.2d 895, 902 (Ala.Civ.App.1998), aff'd in part, rev'd in part, Ex parte
General Motors Corp., 769 So.2d 903 (Ala.1999) (citations omitted). In order to establish
a claim for breach of the implied warranty of merchantability, plaintiffs “must prove the
existence of the implied warranty, a breach of that warranty, and damages proximately
resulting from that breach.” Tucker, 769 So.2d at 901.
Under Alabama law, [ ] the Taylors' must prove that the breach of these implied
warranties was the proximate cause of their injuries. Cain v. Sheraton Perimeter Park
South Hotel, 592 So.2d 218, 221 (Ala.1991) (“Under ... § 7–2–314, the defect or lack of
merchantability, of course, must be proved to have been the proximate cause of the
plaintiff's injuries.”); Chase v. Kawasaki Motors Corp., U.S.A., 140 F.Supp.2d 1280,
1289 (M.D.Ala.2001) (“In an action for breach of the implied warranty of fitness for a
particular purpose, the Plaintiffs must prove” damages proximately resulting from that
breach.”) (citation omitted)….
In sum, Fuller must prove: 1) the existence of the implied warranty; 2) a breach of that
warranty; and 3) damages proximately resulting from that breach. Avery v. Cobra Enterp. of
Utah, Inc., 2013 WL 2352320, *3 (N.D. Ala. May 23, 2013). “Because this case is at the
summary judgment stage…plaintiff only ha[s] to demonstrate that there is at least an open
question of material fact as to each of these elements.” Id. The first step is to determine whether
there is a factual basis for finding the existence of an implied warranty. Id.
As a threshold filter for this first step, “Section 7–2–314 and § 7–2–315 both apply only
to the ‘seller’ of a product.” Johnson v. Anderson Ford, Inc., 686 So.2d 224, 228 (Ala. 1996).
See also Ex parte General Motors Corp., 769 So.2d 903, 910 (Ala. 1999). Section 7-2-103(1)(d)
defines “seller” as “a person who sells or contracts to sell goods.” The statute defines a “sale”, as
“the passing of title from the seller to the buyer for a price (Section 7-2-401).” Ala. Code 7-2106(1). Fuller must also be a “buyer:” “a person who buys or contracts to buy goods.” Ala.
Code. § 7-2-103(1)(a).
Additionally, for § 7-2-314(1) merchantability, WD must be shown to be a “seller” -meaning “a merchant with respect to goods of that kind.” The Code defines “merchant” as one
who sells goods of the kind involved, by its occupation holds itself out as having skill as to those
goods, or to whom knowledge of the goods may be attributed by employment of an agent who
holds himself out as having such knowledge or skill. Ala. Code § 7–2–104(1). Thus, “the jury
must be reasonably satisfied not only that the defendant sold the article in question to the
plaintiff, but also that the seller was ‘a merchant with respect to goods' of the same kind as the
article sold to plaintiff.” Storey v. Day Heating & Air Conditioning Co., Inc., 319 So.2d 279,
281 (Ala. Civ. App. 1975).
For § 7-2-315 fitness for a particular purpose, this is “distinguished from that for
merchantability in that goods might well be suited for their normal uses and yet not be suitable
for some particular purpose.” J. Marsh, Alabama Law of Damages §32:8 Implied Warranties (6th
Ed. Feb. 2017 Update). This warranty “arises upon a sale in which the seller has reason to know
the buyer's particular purpose, the seller has reason to know that the buyer is relying on the
seller's skill or judgment to furnish appropriate goods, and the buyer, in fact, relies upon the
seller's skill or judgment…This warranty liability normally arises only where the seller is a
merchant.” Id. It “is ‘narrower, more specific, and more precise’ than the implied warranty of
merchantability’…” Chase v. Kawasaki Motors Corp., U.S.A., 140 F.Supp.2d, 1280, 1289
(M.D. Ala. 2001).
Fuller admits the absence of an Alabama case directly addressing whether a business
providing a free means of transporting purchased goods is a “seller” or “merchant” under implied
warranty theories. (Doc. 89 at 20). However, the assessment of whether such a business is a
“seller” or “merchant” may not hinge on the free means of transporting goods, but on patronage.
Specifically, Fuller asserts that she was “required to pay for the groceries in order to take
possession and title of the grocery bag” and that WD’s “business of selling groceries to
customers…include grocery bags as part of the total transaction for the goods.” (Doc. 89 at 8,
9). Fuller contends that she:
purchased the grocery bag at the time she paid for the groceries. “Purchase” is defined
as: “[t]aking by sale…gift, or any other voluntary transaction creating an interest in
property”. Section 7-1-201(b)(29). The price of the grocery bag does not have to be
payable in money. Section 7-2-304(1) provides “[t]he price can be made payable in
money or otherwise”…Fuller was required to pay for the groceries in order to take
possession and title of the grocery bag. Accordingly, Winn-Dixie is a seller and a
merchant with respect to the bag.
Fuller has provided no evidence establishing that WD charges for the bags. However, a
factual issue exists due, in part, to WD’s own description of how, and to whom, it supplies the
“free” plastic grocery bags. WD repeatedly asserts that it provides “free” bags to its “patrons”
and “customers.” (Doc. 59 at 3, 15 and Doc. 68 at 10 (citing Doc. 59-5 (Aff. McLaughlin); Doc.
94 at 4, 5). This suggests that free bags are provided by WD, in exchange for patronage of the
store (i.e., the purchasing of the store’s goods). Notably, there is no evidence before the Court –
and WD has not asserted -- that WD provides “free” bags to non-patrons or non-customers
(individuals who enter the store but do not purchase groceries). Based on WD’s description, a
jury could reasonably conclude that while WD does not specifically charge its customers or
patrons for each bag, a requirement to receive a “free” bag is that one must first be a “patron” or
“customer” (i.e., buy groceries). This creates a fact issue as to whether an individual’s receipt of
a “free” grocery bag is contingent on the purchase of groceries such that the “free” grocery bag
is, in actuality, part of the overall/total transaction for the sale of goods, such that it is part of the
“contract for sale” by WD.
For instance, in Cain v. Sheraton Perimeter Park South Hotel, 592 So.2d 218 (Ala. 1991),
the plaintiff, a lounge patron at a Sheraton Hotel, allegedly contracted hepatitis type A from
consuming free, but contaminated, raw oysters. Cain sued for breach of implied warranty of
merchantability and the Court held:
The Sheraton and Woodlands argue that they cannot be held liable under § 7-2-314
because, they say, there was no “sale” by the Sheraton to Cain. Section 7-2-106(1)
defines “sale” as the passing of title from the seller to the buyer for a price. Although the
evidence shows that the Sheraton offered free oysters to patrons in the lounge, we cannot
hold that the oysters were not “sold” within the meaning of the statute. Cain was a patron
in the lounge, and the evidence shows that he had spent approximately $38.00 on drinks
for himself and his business associates while he ate the oysters.….
Cain, 592 So.2d at 222. Thus, the Court recognized that under certain facts, “free” items given
in conjunction with paid items are part of the total sale. Like Cain in the hotel lounge, Fuller was
a “patron” in the WD store. Like Cain spending money on drinks in the lounge and then as a
lounge patron receiving the free oysters, a jury could find that Fuller spent money on groceries at
WD and then as a WD patron received the free bag. The rationale of Cain also appears applicable
to the implied warranty of fitness, Section 7-2-315, as such is also premised on the existence of a
“sale” and the status of WD as a “seller.”19
See also e.g. Levondsky v. Marina Assoc., 731 F. Supp. 1210, 1213 (D.C.N.J. 1990), in which plaintiff
alleged breach of warranty for injuries sustained when a casino cocktail server gave him an alcoholic beverage free
of charge and he swallowed chips from the rim of the glass in which the free beverage was served. The Court
Moreover, Fuller argues that the “free” bag WD provided to her when she purchased the
groceries was an “indispensible” or “integral” part of the overall sale of the groceries (the final or
end stage of the “total transaction in goods”), as the court found for the needle in Skelton. Under
Alabama’s broad interpretation of a sale of goods, a jury could reasonably conclude that it is.
Thus, there is sufficient evidence to establish the existence of an implied warranty.
WD did not specifically challenge Fuller’s ability to establish a breach of the implied
warranty or that damages proximately resulted from that breach. Nor did WD assert any other
defenses to a claim of breach of implied warranty against a seller. Accordingly, WD’s motion
for summary judgment on this claim is DENIED.
Based on the foregoing, it is ORDERED that WD’s Motion for Summary Judgment
concluded that the plaintiff:
….did not pay the cocktail server a specific amount of money for the drink in question, he was
giving defendant his gambling patronage in return….It was not the intention of the framers of the Uniform
Commercial Code to limit the birth of implied warranties to transactions which technically meet its
definition of a sale”……Defendant argues that finding a sale in this instance, would unduly broaden
liability under implied warranty provisions. Defendant uses the example of an art gallery serving free wine
at an opening, and an accident resulting therefrom. This case, however, differs significantly from that
example. A visitor to an art gallery opening is free to enter the gallery, view the art work, have some of the
wine and leave without any payment whatsoever. In this case, the casino only serves drinks to patrons who
have purchased gambling chips, and are gambling. Defendant also argues that serving free drinks is like
offering free parking and restroom facilities, and that finding implied warranties for these services would
be unduly burdensome. Free parking and restroom facilities, however, are purely services, and as services
not subject to the implied warranty provision. A drink, on the other hand, is a good to be consumed by the
Cf. Neuhoff v. Marvin Lumber and Cedar Co., 370 F.3d 197 (1st Cir. 2004) (Gifts do not receive implied warranties
under Article 2. Thus, where a company provided free replacement windows in place of deteriorated windows, this
was more akin to a gift than a sale and there was not implied warranty on the windows. This was distinguished from
the case of free goods given as part of a sale for a single price; here the replacement windows were not coupled with
any other sale or transaction but were provided seven years after the original sale).
(Doc. 59) is GRANTED in part and DENIED in part as follows: GRANTED as to Fuller’s
claims for premises liability, wantonness, breach of express warranty and AEMLD; GRANTED
as to negligence; GRANTED as to negligent supervision, training, and hiring; and DENIED as
to breach of implied warranty.
It is further ORDERED that: 1) WD’s motion to exclude experts is GRANTED in part
and MOOT in part and Plaintiff’s motion to amend is MOOT; 2) WD’s motion to strike is
MOOT as to the third-party beneficiary claim, and WD’s Objections are MOOT as to “Exhibit
3”, and OVERRULED as to “Exhibit 6”; and 3) Fuller’s motion to strike is DENIED.
DONE and ORDERED this the 18th day of July 2017.
/s/ Kristi K. DuBose
KRISTI K. DuBOSE
CHIEF UNITED STATES DISTRICT JUDGE
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